The two decades following the 2001 overthrow of the Taliban regime in Afghanistan saw the country and its youthful population experience the full force of globalization. It went from being one of the most isolated countries in the world to one of the most connected. But with the Taliban return to power in August 2021, that youthful population’s hopes have been significantly dashed, and Afghanistan is once again experiencing the chill of isolation. This is squarely due to the repressive policy settings put in place by the Taliban.

Patterns of Repression

One reason why Afghanistan is isolated relates to the Taliban’s treatment of women. Since their rise to power, the Taliban have enforced gender apartheid. The Taliban’s gender ideology and gender policies have activated a multi-level power game to subjugate and subordinate women in all capacities and spaces, in public and private life. Women are banned from working, apart from limited activity in healthcare sectors; girls’ secondary schools are closed; women cannot travel more than 45 miles; and women and girls are prohibited from entering parks, public baths, gyms and sports clubs. The recent ban on women working for NGOs has limited humanitarian actors’ access to 50 percent of the population, including especially-vulnerable groups such as widows and women-led households. The latest U.N. report on the human rights situation in Afghanistan highlights profound concern over the rise of sexual and gender-based violence against women and girls, citing the high number of “unnatural deaths of women and children” taking place. The report calls onto the Prosecutor of the International Criminal Court (ICC) to consider whether the “crime of gender persecution” is taking place under Taliban rule.

Another reason for Afghanistan’s isolation is the Taliban’s attempt to establish a coercive system of rule that actively discriminates against most of Afghanistan’s ethno-linguistic groups. With limited popular support, the threat of force is their default setting for maintaining control. Initially, the group’s public relations campaign aimed to spread the message that a “Taliban 2.0” would be willing to share power and accommodate the needs and demands of the country’s diverse population. In practice, the Taliban movement has reverted to its ethnic core of primarily southern and eastern Pushtuns who dominate the group’s interim cabinet in Kabul. The new provincial administrations are almost entirely composed of Pushtun members of the Taliban, including in areas where other groups form the local majority. Afghanistan’s Hazaras are completely excluded from the cabinet, and local Taliban allies have used their newfound power to evict thousands of Hazaras as well as other groups from their lands by force. In the meantime, a genocidal wave of violence towards the Hazaras has escalated since the Taliban’s return to power. Furthermore, former Afghan army soldiers, including many Pushtuns, are routinely dragged from their homes and murdered by the Taliban.

The Push to Engage

While one recent report, despite all these developments, has advanced the startling claim that “the collapse of their rule would not be in anyone’s interest,” the conduct of the Taliban, hauntingly reminiscent of their behavior in the late 1990s, has resulted in their once again becoming pariahs in the international system. Taliban attempts to suggest that in power, they would be a more tolerant force have proven to be nothing more than propaganda. Yet despite this, calls persist for high-level diplomatic engagement with the Taliban as an alternative to current approaches, with even the U.N. Deputy Secretary General stepping onto this thin ice. Many of these calls are doubtless well-intentioned, and some come from humanitarian players with a long history of activity within Afghanistan. But at the same time, the arguments advanced to support such calls are often naïve, and reflect little awareness of the complexities and limitations of diplomatic engagement.

One area where this immediately surfaces relates to the concept of recognition. Withholding recognition is a form of diplomatic signaling, sending a message both about the norms that a state expects to see upheld in the international system, and its assessment of the behavior of the actor seeking recognition. Since August 2021, not a single state has granted formal de jure recognition to the Taliban. The claim is sometimes made that establishing diplomatic missions in Kabul would not amount to recognition either. This, however, misses a key point. The Taliban would undoubtedly treat the establishment of missions by key western players as a form of de facto recognition – pointing to a weakening of human rights concerns, and legitimating the Taliban regime. The signal that this would send would be lamentable, and just as likely to prompt further Taliban intransigence as accommodation. In early 2021, a noted U.S. proponent of engagement claimed that the United States had “underestimated the leverage that the Taliban’s quest for sanctions relief, recognition and international assistance provides.” Events showed that almost the exact opposite was the case. Promising recognition is also a poor bargaining tactic since, once granted, recognition is difficult to retract, while commitments made to secure it may be easily dishonored.

Practicalities of Engagement

Beyond these issues of principle, some practical considerations make it unlikely that major powers will rush to re-establish diplomatic presences in Kabul. The locus of key decision-making has now shifted from Kabul to Kandahar, where the Taliban supreme leader, Hibatullah Akhundzada, has his office and power base. Recent suggestions that Hibatullah is not in a strong position are belied by the centrality to Taliban rule of a Führerprinzip, given the absence of any kind of formal constitutional structure. Missions in Kabul have little hope of engaging with the principal Taliban leadership, and when the U.N. Deputy Secretary-General visited Kandahar in January 2023, Hibatullah did not meet with her. What western embassies in Kabul would do is provide targets for terrorist groups that remain active within Afghanistan. In February 2023, the Saudis evacuated their mission in Kabul because of such security threats. The threats that could confront western missions would likely be much greater.

There is then the question of exactly what diplomatic engagement might actually achieve. Here, it is easy to overestimate the scope of what is possible. In a relatively-open environment with an institutionalized political system, classic diplomatic activities such as representation, negotiation, and information-gathering can be carried out with little difficulty. This is not the case when one is dealing with a deeply-opaque group such as the Taliban, and with a system based on complex networks rather than institutions. Unfortunately, in appraising the Taliban, western policymakers have a long history of seeing what they would like to see, and shaping their policies accordingly. The 2020 U.S.-Taliban agreement provides a canonical example of where this can lead. Even if diplomatic missions were opened in Kabul, it is unclear whether they could easily be staffed with personnel whose knowledge of Afghanistan, and language skills, would allow them to make much sense of such an impenetrable and mystifying environment, and the hope that face-to-face engagement could convert the Taliban into a force even remotely compliant with key international norms is frankly utopian.

Perils of “Normalization”

There is no doubt that the push to “normalize” the Taliban at the moment is quite strong, at least in some U.S. circles. One energetic proponent of engagement, who happens to be male, has even written that “it is time for governments to tone down their sanctimonious posturing about women’s rights and democracy.” Such normalization is dangerous, and ignores the reality that international players have a vital role to play as critical defenders of fundamental human rights norms. This is the case not just for instrumental reasons. The willingness of states to defend fundamental norms tells us something about what kinds of states they are, or wish to be. To the extent that international organizations and humanitarian actors have cited their commitment to norms such as gender equality when touting their own credentials, they too have a responsibility to continue to affirm those norms, even if it proves inconvenient to have to do so when dealing with a misogynistic tyranny. There is no evidence that compromising with the Taliban will improve the lives of ordinary Afghans, but the disposition to keep trying while getting little or nothing in return seems deeply ingrained. The danger is that for the sake of “engagement,” states will end up making what the philosopher Avishai Margalit calls a “rotten compromise,” namely an “agreement that establishes or maintains an inhuman political order based on systematic cruelty and humiliation as its permanent features.”

The Taliban as the Problem

The problems faced by ordinary Afghans are profound, but their roots are political, and it is unwise to pretend otherwise. The Taliban are no friends of the vulnerable. A recent report quotes a close observer as saying: “They have an utter contempt for the poor, believing poverty to be retribution for bad behaviour.” In addition, western policies designed to address humanitarian needs can have unintended consequences that must be avoided. As a recent study has demonstrated: “If international aid pays costs that otherwise would have been covered by domestic revenues, it frees up funds in the Taliban’s national budget for other uses, such as prisons, the emir’s office, and the security sector, where spending has been buoyant.”

The Taliban are not short of funds. On the contrary, the revenues they raise – from customs and other sources – are used to bolster the coercive instrumentalities of the regime, and there is a real question as to whether aid funds flowing into the country are freeing the Taliban of their responsibility to serve the wider population. Rather than seeking to engage with the Taliban leadership, it would make far more sense for humanitarian actors to seek to engage directly with local communities “below the radar,” where the risk of funds being diverted to bolster a brutal and discriminatory system is much lower, and the needs of ordinary people can be better met.

One final and very obvious point is worth underscoring. States make decisions about how to engage with other actors on the basis of a range of domestic considerations and calculations – leaders have their own local politics to manage. Aid resources are scarce, and there are many deserving causes they could support. In light of the Taliban’s behavior and actions, it is unclear why western leaders would want to risk engaging with the Taliban when they could be excoriated by their own domestic opponents for doing so. Similarly, why would western governments commit scarce aid resources to Afghanistan – funds that the Taliban might be in a position to exploit ­– when they could much more safely provide assistance to vulnerable or needy people in other parts of the world?

The lesson here is stark. It is the very nature and character of the Taliban that currently condemns the people of Afghanistan to suffer, and the situation is not going to improve in any meaningful way as long as the Taliban remain in charge.

IMAGE: Taliban security personnel walk along a road after gunfire erupted between Afghanistan and Pakistan border forces at Torkham border crossing between Afghanistan and Pakistan, in Nangarhar province on February 20, 2023. (Photo by SHAFIULLAH KAKAR/AFP via Getty Images)

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It’s time for the United States to recognize the Taliban for who they are–an extremist, dogmatic group on a “divine” mission to embed their version of Islam in society, in ideological alignment with regional and international Islamist militant groups. The United States must rethink its strategy toward Afghanistan: U.S. officials should see the Taliban for what it is, and start shifting focus now to prevent the group from gaining a stronger foothold in Afghanistan.

Different Strategies, Same Dogmatic Mission

The core Taliban leadership is composed of ultra-conservative Islamists and extremists who believe in a divine mission to purify and “cleanse” Afghan society of what they perceive as corrupt “western” values, including girls’ education, women’s employment and their freedom of movement, and freedom of expression and assembly. The group’s priority is to establish and expand a puritanical theocratic Islamic state in which their interpretation of Sharia, or Islamic law, is upheld by fear and force. The Taliban perceive their victory against U.S.-backed forces in August 2021 has given them a divine mandate to advance this cause. Mullah Haibatullah and those around him have consistently referred in their rhetoric to their sacred mission and to consequences in the afterlife for failing to live up to it.

Since taking power, the Taliban’s primary governance objective has been to ensure full compliance with their oppressive policies and the indoctrination of Afghan society. The group has re-established the power and authority of the Ministry for the Propagation of Virtue and Prevention of Vice as well as setting up ulama (religious) councils within government departments that directly report to Mullah Haibatullah, and as one analyst put it, to function as the Amir’s eyes and ears, like a nationwide “neighborhood watch”, strengthening and imposing the will of the Amir.

The Taliban are continuing to build their army of supporters to ensure that, in time, their purification mission is embraced by every village across Afghanistan. The Taliban leadership has announced that their priority in the next two years is to establish two to three religious schools, or madrassas, in each of the 364 districts and 34 provincial capitals of Afghanistan.

They have also imposed draconian restrictions on women: banning girls’ education and women’s employment at NGOs. In early April, Taliban issued further decrees banning Afghan female staff working for the UN agencies to come to work, despite confidence and private guarantees this would not happen. These bans were imposed despite an international outcry, not to mention the consequences for their global standing and the immeasurable economic and humanitarian impact on ordinary Afghans.

The Taliban’s leadership cadre has never been moderate, as some have tried to argue, thereby downplayed the egregiousness of the Taliban’s rule. Others have asserted that the current Taliban regime can change – that they are ultimately open to an inclusive government and protecting fundamental human rights if only the international community would give them recognition, money, and more time. In a recent article for the United States Institute of Peace, the authors argued that, due to the failure of diplomatic progress, imposed by unrealistic U.S. expectations and roadmaps, moderate factions within the Taliban have been undermined, further empowering ultraconservatives.

In his book, former Taliban Ambassador to Pakistan Abdul Salam Zaeef vehemently rejects such characterizations. He writes: “The thought of dividing them into moderates and hardlines is a useless and reckless aim” and that “the Taliban movement is one based on Islamic ideology, struggling for holy jihad under the principles of ita’at or obedience and samar or listening.”

Those in Kabul, including the Taliban’s First Deputy Leader and Acting Interior Minister Seraj Haqqani, as well as Second Deputy Leader and Acting Defense Minister Mullah Yaqoob Mujahid, could put on a moderate face for western consumption as they consolidate power and seek international recognition. Still, these pragmatists should never be mistaken for true moderates.

These senior Taliban leaders are cut from the same cloth as the rest of the core leadership: the ecosystem of ultra-conservative informal schooling, known as Hujra, in Southern Afghanistan and the radical Afghan-led madrassas in parts of Pakistan. In the madrasa system, children as young as seven and eight are raised, often away from their families, and indoctrinated in ultra-conservative Islamic ideology and militancy, especially in the last two decades following the U.S. military intervention in Afghanistan.

The difference between the pragmatists and the core dogmatic group is mainly over strategy and sequencing. The pragmatists’ public show of apparent support for women’s education and work is driven purely by the need to secure international recognition and development assistance. During the 2019-2020 Doha talks, the Taliban strategically played to the demands of Western countries. For example, in a February 2021 Open Letter to the people of the United States of America, the chief Taliban negotiator Mullah Baradar claimed the group was “committed to upholding and guaranteeing all rights of women afforded to them by Islamic law.” Haqqani’s opinion piece for the New York Times was another part of a strategic, orchestrated campaign to present a new face of the Taliban.

These claims belie the reality that ordinary Afghans are facing. There is little to suggest that the Haqqani leadership truly has a “moderate” vision for Afghanistan. The pragmatists’ stand should not be interpreted as a significant internal rift within the Taliban, potentially leading to the group’s fragmentation.

Despite internal jockeying over the Taliban’s strategy and tactical approach, there are no substantive divides regarding their shared ideology. The pragmatists are wholeheartedly committed to the shared elements of their ideology. They also will not defy their Amir, as some might hope. Given how the group’s legitimation system is structured, they cannot afford to lose an open conflict against their Amir and risk being ostracized.

The Taliban’s Legitimacy Structure

In the Taliban’s ideologically-driven hybrid authority structure, with vertical and horizontal features, Amir ul-Muminin (the Commander of Faithful) sits at the top of the vertical command structure, defining direction and policies. The current leader, Mullah Haibatullah Akhundzada, remains the ultimate source of supreme and divine moral authority. As with the Roman Catholic Pope, when speaking ex-cathedra, Mullah Haibatullah, as the Amir, remains infallible. As such, there is no other credible or legitimate actor within the Taliban who can challenge the leader’s will. At the horizontal level, the ministers and state officials are mainly responsible for managing day-to-day government operations, ensuring policy implementation and, if need be, advising the Amir.

This dual authority structure may explain the differences in practice on some issues across Afghanistan, for instance, in how strictly the restrictive decrees on banning girls’ education is being implemented, rather than signifying differences in value and politics within the Taliban senior leadership as some analysts have pointed out. At the horizontal level, officials enjoy a degree of elasticity, allowing for local variations in practice. The historically decentralized nature of governance in Afghanistan better explains these local variations.

Within this legitimation process, going against the leader means, at the very least, losing face and ostracisation by peers. In response to criticism from the ulama regarding the Taliban’s ban on the education of girls, Mullah Haibatullah, in a public July 2022 statement, warned that criticism of authorities was “not permissible” in Islam. The Amir has quickly framed any criticism and dissent around the use of fitna – a state of political disorder in which people cannot fulfill their duties as Muslims. Fitna can permeate society like a disease, which must be eradicated by all means. This ideology ensures that the Taliban’s sacred agenda faces no disruptions, even minor ones, subsequently allowing them to present their policies as in alignment with the Afghan society and Islam and even as popular. As such, the group has brutally suppressed any dissent to their rule in the broader Afghan society and within their ranks.

More recently, Taliban’s Minister of Higher Education, Neda Mohammad Nadeem, warned that “those undermining the order, either by speech, pen, or in practice, are considered Baghi [the one opposed to a just leader] and Wajeb ul-Qatl [permitted to be killed].”

Time for the US to Rethink its Afghanistan Strategy

From this lens, unsurprisingly, international engagement with the Taliban keeps hitting a brick wall and has mainly proved ineffective, including on women’s rights. The United States and its allies are dealing with a regime on a radical mission, making any meaningful engagement very difficult beyond technical discussion over the delivery of humanitarian aid.

The carrots the international community has proposed so far subject to Taliban’s improved policies towards women – broader engagement and potential development assistance in specific areas – such as salaries for teachers or in the healthcare sector – is of secondary importance for the Taliban core leadership. They are driven and motivated by a puritanic mission and elements of a shared ideology. Indeed, they would rather see the Afghan population starve to death than undermine this mission.

It’s time for western policymakers to be realistic about the potential security threat the Taliban pose and the group’s commitment and ability to prevent the use of Afghan territory for international terrorism. On the third anniversary of the U.S.-Taliban deal, State Department Spokesperson Ned Price once again confirmed that “the Taliban have not fulfilled their commitment… while they have taken some unsatisfactory steps regarding certain terrorist groups in Afghanistan, it is well known that the Taliban sheltered then al-Qaeda leader Ayman al-Zawahiri, which flies in the face of the agreement.” On July 31, 2022, a U.S. drone strike killed the al-Qaeda leader, Aiman al-Zawahiri, Osama Bin Laden’s successor, in the heart of Kabul. He was reportedly hosted and sheltered by the notorious Sirajuddin Haqqani, the Taliban’s First Deputy Leader and Acting Interior Minister, and one of the so-called “moderate” Taliban.

Similarly, the regional affiliate of the Islamic State of Khorasan (ISK) has carried out dozens of attacks targeting Shia and other minorities, demonstrating the Taliban’s inability to quell the threat from ISK. General Michael Kurilla, the commander of U.S. Central Command told lawmakers in March this year that ISK in Afghanistan could target U.S. and other Western countries’ interests in the next six months. His assessment was that the group is recruiting and expanding rapidly inside Afghanistan.

Underneath the relative calm, there is trouble brewing. It’s a matter of time before the country once again becomes a breeding ground for international terrorism and radical Islamic movements. It doesn’t help that since taking power the group has alienated the vast majority of Afghans and diverse ethnic and tribal groups from the political process. This can have implications for future domestic conflict.

Some pundits have played down the threat posed by the Taliban, pointing out that the group has not expressed ambitions to expand its mission beyond Afghanistan’s borders. That might be the case for now, but three factors increase security risks beyond Afghanistan.

First, the Taliban’s victory and return to power resonated with militant Islamic groups far beyond Afghanistan. Their return to power is a blueprint for other Islamist groups in the region whose aim is to topple and replace regimes through violence. Immediately after the Taliban victory in August 2021, Tahreek-e-Taliban Pakistan (TTP) leader Noor Wali Mehsud, renewed his oath of allegiance to the Islamic Emirate of Afghanistan in a statement, describing their win over the United States as a “victory” for the “entire Muslim ummah” (or worldwide community of Muslims).

Second, the Taliban’s attempts to further radicalize Afghan society and undermine modern legal frameworks and institutions may provide a blueprint for other religious groups in the region. Taliban leader Mullah Haibatullah recently spoke about the legal framework in Pakistan being contradictory to Islam, indirectly justifying TTP’s attempt to topple the existing structures. The radical policies of the Taliban will inspire other groups and may have global ramifications.

Third, the Taliban might not be in the position or have the ambition to lead the flag of “global Jihad” against the West and within the region. However, this should not be interpreted as their unwillingness to empower and enable the country and regional-specific militant groups and movements to expand their ultra-conservative mission. There is ideological alignment on a shared jihadist project, with several regional militant groups seeking to implement a Shariah-compliant political order through force.

Several experts aptly documented the ideological alignment between the Afghan Taliban and the TTP. Since the Taliban military takeover in August 2021, TTP has intensified its attacks and wreaked havoc across Pakistan, killing hundreds of state officials, police, army soldiers, religious minorities, and civilians. Similarly, Tajikistan has persistently raised, especially in recent months, concerns about potential militant incursions, not only by Islamic Movement of Uzbekistan (IMU)–a terrorist group with close links to the Taliban and al-Qaeda, to set up an Islamic’ caliphate’ in Central Asia–but also by other purported jihadi outfits.

In the medium to long term, the Taliban could further forge and consolidate the alliance with militants in South and Central Asia to try to destabilize the region and beyond. Afghanistan is an incubator for many of these militant groups. It may only be a matter of time before Afghan soil is used to stage another international terrorist attack. For example, TTP is already using Afghan territory to launch attacks inside Pakistan.

Others have argued that the Taliban is using the existence of militant groups, including TTP, IMU, East Turkistan Islamic Movement (ETIM), and al-Qaeda, as a short-term strategy to gain political leverage against its neighbors and the world. However, the Taliban’s track record of supporting ideologically-aligned militant groups has been historically consistent. In 2001, they did not turn against al-Qaeda or hand over Osama Bin Laden to ensure their survival. Why would they do it now? At the same time, why would the group break its relations with transnational Islamist groups such as TTP, IMU, and al-Qaeda, given their shared mission? The group historically has been willing to take extreme risks to maintain their commitment to foreign jihadis in Afghanistan, despite significant international pressure.

What are the policy options for the United States and its allies? While the United States must continue to engage with the Taliban on humanitarian issues, this engagement should be limited if the Taliban’s repressive policies remain unchanged. As the U.S. Special Inspector General for Afghanistan Reconstruction warned in yesterday’s congressional hearing, U.S. humanitarian aid to Afghanistan requires greater oversight to ensure resources are not diverted to the Taliban or other terrorist groups.

Recognizing that the Taliban’s mission could further radicalize Afghanistan and have implications for the region and the world, political and financial support to counter the Taliban’s dangerous and dogmatic mission should be at the heart of U.S. outreach efforts. The United States should also more effectively engage with non-Taliban Afghans, both political and civil society groups.

Meanwhile, the Taliban’s narrative and ideology must be consistently and vocally challenged by Muslim leaders and scholars. This dangerous vision for society, particularly their complete erasure of women, must not be normalized. Prominent Pakistani Mufti Taqi Usmani’s recent letter to Mullah Haibatullah urging him to reconsider his position on girls’ education is encouraging. Turkish President Erdogan’s stance on the Taliban’s oppressive policies towards women was also a positive step. The United States and other western countries should support consistent and coordinated messaging on these issues from the Islamic world’s leaders and religious leaders inside Afghanistan.

In its engagement with the Taliban, the international community may find an occasional ally within the group on a few issues. While this may seem reassuring, it does not provide inroads to changing the Taliban’s radical outlook and behavior. What is needed now instead is a coherent foreign policy that contains the threat the Taliban poses to freedom and stability in Afghanistan, the wider region, and beyond.

IMAGE: A Taliban security personnel sits on a humvee armored vehicle near the site of a suicide attack in Kabul on March 27, 2023. – A suicide attack on March 27 not far from Afghanistan’s foreign ministry killed six civilians and wounded several others, the interior ministry said. (Photo by WAKIL KOHSAR/AFP via Getty Images)

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The importance of the issue is undeniable. Polling and comments by allies signal that the execution of the Afghanistan withdrawal, regardless of where one stands on the basic policy decision to end the war (I strongly supported leaving), was a disaster impacting global confidence in U.S. leadership, only partially offset by the administration’s impressive response to the war in Ukraine. Moreover, this disaster is not a one-off, but reflects repeated failures to get U.S. operations abroad right in times of war or crisis, under both Democratic and Republican administrations. Many of these failures have dramatically impacted U.S. foreign and domestic policy, from the penetration of the Saigon Embassy compound by North Vietnamese forces during the Vietnam War’s Tet Offensive and then the largely-botched evacuation of the embassy at the end of the war in 1975, to the failure to pull out personnel after the first Tehran embassy takeover in 1979, the Beirut bombings contributing to the Iran-Contra scandal, the Benghazi disaster in 2012, and most recently the Kabul withdrawal.

As someone who helped organize three diplomatic evacuations — Kuwait in 1998, Beirut in 2006, and northeast Syria in 2018 — and who served in war zone embassies for many years, I repeatedly witnessed strategic failures related to the State Department’s procedures, assumptions, and underlying culture that desperately need airing.

Dan’s hope that we can trust administration reviews and testimony to provide “as good or better a picture…of the withdrawal” than examination of the dissent authors’ arguments rings hollow in the face of the pollyannaish administration summary of a 1 ½-year review of the withdrawal that the White House released on April 6. The Washington Post referred to the summary as  “a disappointment” for failing to grapple forthrightly with the “ugly optics of the United States abandoning its ally in Kabul.”

As Dan stressed, protecting the integrity of the Dissent Channel is an important consideration, and that includes ensuring State Department staffers are not discouraged from using it.  I just do not see release harming this important tool, assuming not only the authors’ names are redacted (as House Foreign Affairs Committee Chair Michael McCaul (R-Texas) will likely accept), but also those of any department or administration leaders, as again this is not about possible individual mistakes, but rather policy process failures.

As Dan noted, some dissent cables have been made public. In fact, that was the case beginning with one on the Obama administration’s Syria policy, then continuing into the Trump administration. Drafters of such missives, by widely distributing proposed cables for additional signatures, all but ensure the cables would leak.  While not condoning that approach, I cite it as evidence authors do not necessarily fear publicity.

And it is hard to imagine they would do so in this case. Indeed, news of the U.S. Embassy Kabul dissent cable already leaked just a month later, in the midst of the withdrawal. Despite fairly rigid department protections, those dissenting take career risks in challenging policy, and thus can be expected to want the department and the larger U.S. government to take their arguments seriously. If, in the case of this Kabul cable, the department followed their advice, that is important to know.  If it did not, it is important to understand why, particularly if the advice appears correct in hindsight.

It is very hard to understand why those drafting this cable would see this as inhibiting their and others’ willingness to dissent in future contingencies, but rather as assurance that the political process is functioning as it should and that administrations will truly consider dissenting views. Furthermore, the possibility that such views will eventually be reviewed by Congress and the public would likely encourage the department to take dissent seriously, which is the whole point of the Dissent Channel. When the department has good grounds to reject dissent positions, as Dan pointed out with the Gerry Adams case, so be it; when it does not, as could be the case with Kabul, the possibility that the administration will later be held to account for dismissing dissent could ensure a more serious review of arguments contained in such cables.

Again, I recognize the partisan aspect to this issue, but the tradition of inter-party comity in the foreign affairs committees is to some degree still alive, and there is also strong bipartisan interest in avoiding repeats of past mistakes that put American lives on the ground at risk. The State Department should release the dissent cable expeditiously to ensure that Congress — and the American people — gain a fuller picture of the events leading up to the withdrawal and the lessons that should be learned.

IMAGE: Secretary of State Antony Blinken speaks about Afghanistan during a media briefing at the State Department, on September 3, 2021, in Washington, DC. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images).

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It’s reasonable for Congress to look hard at the administration’s decision to pull out of Afghanistan and its execution. But it can do so without compromising some of the very mechanisms that provide crucial, real-time checks on U.S. policy from the inside. The State Department’s Dissent Channel is one of those.

The House Foreign Affairs Committee is conducting hearings to investigate the Biden administration’s conduct of the Afghanistan withdrawal. As part of this process, committee Chairman Michael McCaul (R-Texas) has demanded the administration provide relevant documents, which it has done. But the administration did not provide everything the committee requested, and McCaul has demanded three documents in particular that were omitted in the department’s response: a “Dissent Channel” cable reportedly sent by diplomats in the U.S. Embassy in Kabul in July 2021, an “After Action Report” prepared by Ambassador Daniel Smith (who was acting director of the State Department’s Foreign Service Institute at the time and was tapped to review the department’s role in the withdrawal), and two iterations of the U.S. Embassy Emergency Action Plan. (Full disclosure: Ross Wilson, then chargé d’affaires at the U.S. Embassy in Kabul, and Smith are longstanding colleagues and friends.)

In testimony to Congress, Secretary of State Antony Blinken offered that the “After Action Report” would be available to Congress by mid-April, and a summary of such a report appears to have been released yesterday. In a letter to Blinken, however, McCaul noted that the Dissent Channel Cable remained the committee’s top priority and, on March 30, he issued a subpoena to obtain it.

As often happens in disputes between members of Congress and the administration, debates about substance take the form of fights over process. McCaul is right to press the administration on Afghanistan. His demand for a Dissent Channel cable, however, is off the mark.

The Dissent Channel dates from the Vietnam War era. Opposition to U.S. policy was widespread in the U.S. Foreign Service and the State Department, and in 1971, the State Department sought to address it by creating a channel for dissenting views, with pledges to protect the dissenter and give confidentiality to the entire process.

State Department personnel have used the Dissent Channel many times over the past 50 years of its existence, including to take issue with aspects of U.S. policy in Vietnam, to criticize U.S. support in the 1970s for Nicaraguan dictator Anastasio Somoza, to protest lack of U.S. action in the initial stages of the Bosnian War in 1993, to object to U.S. outreach to Sinn Fein leader Gerry Adams in 1994, to oppose aspects of the U.S. decision to invade Iraq in 2003 and, more recently, to challenge aspects of Trump administration policy.

The impact of Dissent Channel cables has been mixed. They usually do not result in immediate reversals of policy. Some of the dissenting arguments have, in retrospect, been proven mistaken, such as the protest against providing a 48-hour U.S. visa for Sinn Féin leader Gerry Adams for public appearances in January 1994, which turned out to be an early step toward the 1998 Good Friday Accords that helped bring peace to Northern Ireland. But some dissents have foreshadowed later policy changes, such as the 1992 dissent message that reflected widespread and justified frustration with initial U.S. policy on the increasingly brutal war in Bosnia and helped set the stage for the stronger policy that led to the Dayton Accords that ended the war. The American Foreign Service Association, which represents Foreign Service personnel, regularly awards such staff in its “Constructive Dissent Awards,” as it did again just last year.

The Dissent Channel is hardly the only way to change policy. (In my 40-year Foreign Service career, I never used it but challenged policies – and sometimes accomplished changes — using other bureaucratic methods, which is another story.) Still, it is a valuable tool and worth protecting. It can alert senior policymakers to problems that might have been overlooked or buried. It can, as in the case of the Bosnia Dissent message, point out policy weaknesses. The State Department has tried to keep the Dissent Channel confidential both to protect internal deliberations and protect its users. Older Dissent Channel messages have been made public, some have leaked, and some are made public when the dissent carries the day. But, generally, the Dissent Channel has maintained its confidential status, as it should. The Dissent Channel’s basic deal – confidentiality of the message and protection for the dissenter – is sound and should be respected. McCaul addressed some of these points by offering to have State redact the names of the drafters. But the use of a Dissent Channel message in an investigation still raises problems.

McCaul is conducting a reasonable investigation, but he does not need access to the Dissent Channel to do the job. The “After Action Report,” plus testimony from Chargé Wilson, for example, would give as good or better a picture of the timing and execution of the withdrawal and possible alternatives. Forcing release of Dissent Channel cables would chill their candor, intimidate potential senders of Dissent Channels messages by making them subject to fights between Congress and the administration, and inject an element of gamesmanship into the process. The right answer is to investigate but not weaken the Dissent Channel in the process.

IMAGE: U.S. Rep. Michael McCaul (R-TX) (3rd L) speaks as House Minority Leader Rep. Kevin McCarthy (R-CA) (4th L) and other House Republican veterans listen during a news conference in the Rayburn Room of the U.S. Capitol August 31, 2021 in Washington, DC. House Minority Leader McCarthy held a news conference on a Republican effort to pass legislation they said was intended to hold the Biden administration accountable for what Republicans called a disastrous withdrawal from Afghanistan. (Photo by Alex Wong/Getty Images)

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Yet, as one of us has previously discussed, recent editions of this transparency report are more notable for what they conceal and omit than what they reveal. The 2022 report illustrates the limits of congressionally mandated reporting requirements on matters of war and peace and the need for Congress to be more proactive in informing itself and the U.S. public on how the executive branch uses force and conceives of its own authority.

Named after the section of the Fiscal Year 2018 National Defense Authorization Act in which it was originally codified, the 1264 report on “the legal and policy frameworks for the United States’ use of military force and related national security operations” must describe “the legal, factual, and policy justifications” for any changes to the frameworks during the prior year. Specifically, the report is to include, inter alia, a list of groups covered by the 2001 Authorization for Use of Military Force (2001 AUMF) and the criteria for designating foreign forces and individuals as lawfully targetable or as belonging to a group covered by the 2001 AUMF. In addition to the annual report, Congress has also required that changes to these legal and policy frameworks must be notified to relevant congressional committees within 30 days.

A few aspects of the brief 2022 report are noteworthy.

Classified transparency

First, and foremost, like previous reports beginning in the Trump administration, the report contains a classified annex. Thus, this latest report does not by itself strive to provide a comprehensive update on use of force frameworks. Instead, much of the relevant “transparency” is classified.

Such secrecy is particularly significant with respect to the list of groups the executive branch deems covered by the 2001 AUMF. As one of us has previously written, the executive branch has a mixed record at best over the last two decades of publicly disclosing who it thinks the United States is at war with under the AUMF. After prodding from the Senate Armed Services Committee, the Obama administration eventually released an unclassified list of the entities it considered covered by the 2001 AUMF. In the Trump administration, the executive branch reverted to classifying the complete catalog of groups. The new 1264 report states there has been “no change” to this still classified list.

One question raised by this “no change” claim is how the executive branch slices and dices various jihadi groups for the purposes of the 2001 war authorization. For example, since 2014, the executive branch has deemed the Islamic State covered by the 2001 AUMF. But it is unclear whether the Biden administration currently conceives of ISIS in Iraq and Syria and all of its affiliates (e.g., ISIS-Khorasan Province, ISIS-West Africa, ISIS-Sahel, ISIS-Libya, ISIS-Somalia, ISIS-Yemen, ISIS-DRC, ISIS-East Asia Province, ISIS-Mozambique etc.) as a single undifferentiated entity or many separate groups for AUMF purposes. Do some of all of them qualify as “part of” ISIS? Does each have to meet the test of a so-called “associated force” used by the Obama and Trump administrations, including having “entered the fight” alongside ISIS and “against” the “United States or its coalition partners”? (More than twenty years into the war on terror, it is unclear who these “coalition partners” currently are.) Given the number and geographic distribution of these ISIS affiliates, how the executive branch understands ISIS for purposes of AUMF coverage could have significant implications for which of the myriad regional conflicts involving ISIS the United States could also become a party to.

Geographic scope and a new legal basis for using force in Afghanistan

The report states that the “calendar-year report for 2021 reflected that the United States used military force in Afghanistan, Iraq, Syria and Somalia. As previously recognized, the United States used force in each of those countries in 2022 as well.” This framing suggests that the list of Afghanistan, Iraq, Syria, and Somalia may not be exhaustive. Whether additional states are listed in the classified annex is, of course, a secret.

With respect to Afghanistan, the report indicates a potentially nuanced change to the international legal basis for using force against al-Qa’ida, ISIS, and other (unspecified) terrorist threats. Prior to the August 2021 withdrawal of U.S. forces from Afghanistan, the consent of the government of Afghanistan had been a basis under international law for the use of force in that country. Discretely alluding to the collapse of the Ashraf Ghani government and the Taliban’s ascent to power accompanying the removal of U.S. forces from the country (“In light of changed circumstances associated with [the US] withdrawal…”), the report states the “United States does not intend to rely on that previously provided consent.” (emphasis added).

This wording makes clear that the United States will not rely on the consent of the now deposed government of Ashraf Ghani for operations within Afghanistan. But it does not preclude the possibility that the United States might seek, or already have, the consent of the Taliban for counterterrorism operations against targets of mutual interest, specifically ISIS.

In addition, the United States reserves, “absent reliance on consent to use force in Afghanistan” the “inherent right to use necessary and proportionate force in self-defense to the extent Afghanistan is unwilling or unable to confront effectively the threat to the United States emanating from the territory of Afghanistan.” (The report does not specify who for these purposes represents Afghanistan, though the United States has not formally recognized the Taliban as the government of Afghanistan.) Self-defense under Article 51 of the UN Charter and in particular, incorporating the controversial “unwilling or unable test” into its self-defense rationale, would thus seem the likely purported international legal basis for potential strikes on targets where U.S. and Taliban interests do not align, namely those taken against al-Qa’ida. For example, the administration was dismissive of the suggestion that it had coordinated with the Taliban on the July 2022 strike on al-Qa’ida leader Ayman al-Zawahiri. (“No, of course, we did not alert the Taliban to the fact that we were going to take this strike.”) As with the “unable or unwilling” test itself, the notion that a state using force in self-defense against a non-state actor on another state’s territory can skip seeking the consent of the territorial states is controversial, though the Biden administration may well argue that requesting Taliban consent for such strikes would be so clearly self-defeating that it is not required under international law.

What else is missing?

A notable absence in this latest report is any mention of the legal basis for reoccurring hostilities between U.S. forces and “Iran-backed militia groups” in Syria. Such hostilities in both the Trump and Biden administrations have repeatedly sparked bipartisan inquiries from members of Congress (see here and here). The low-level conflict with these groups raises a number of legal issues under both domestic and international law, as discussed here and here.  The Biden administration’s silence on the matter in this report seemingly implies that the relevant legal and policy frameworks, whatever they may be, are unchanged since these hostilities began during the Trump administration. Like the underlying conflict with these groups, the executive branch’s legal thinking on these hostilities may also be on autopilot or at least classified.

The Biden administration also missed an opportunity to publicly reject the Trump administration’s fraught claim that the 2002 Iraq AUMF and the president’s inherent Article II war powers provided legal justification for the January 2020 strike that killed Iranian general Qassem Soleimani. While the Biden administration has not invoked the Trump administration’s flawed justifications for the Soleimani strike, failing to officially disavow them leaves in place an avenue for a future administration to take advantage of these legal interpretations in order to vastly expand U.S. military operations without prior congressional authorization, should they so choose.

What’s new?

The 2022 report is approximately one page longer than the Biden administration’s past two section 1264 reports (see here and here). This additional page is largely due to the reiteration of two previously announced new policies – the Presidential Policy Memorandum (PPM) concerning “direct action against terrorist targets outside areas of active hostilities” and a Defense Department action plan to improve civilian harm mitigation and response.

The PPM, which is understood to provide rules governing lethal strikes and raids outside of Iraq and Syria, is discussed minimally. While the report notes the PPM’s existence, it says nothing of is contours, which are reserved for the classified annex. News of the PPM first came via an October 2022 Charlie Savage New York Times article, which cited an anonymous “senior administration official” who conveyed “key aspects” of the policy for inclusion in the piece. According this article, the Biden administration envisioned developing “country plans” to provide further guidance on the PPM’s implementation. The anonymous official also discussed with Savage a new memo setting out the administration’s counterterrorism strategy, which was developed alongside the PPM and has also been kept secret.

The Biden administration’s refusal to release the actual PPM is baffling, given both the Obama and Trump administrations were court ordered to release their lethal force policies (here and here) and did so, with appropriate redactions. Both members of Congress and civil society organizations have called on the administration to make its new lethal force policy and counterterrorism strategy memo public. The Biden administration should heed these calls and rather than waiting for the inevitable outcome of litigation on the matter, release the full PPM along with any country plans as well as the counterterrorism strategy memo, with minimal redactions to protect classified information.

Finally, the report includes a summary of the recently released Defense Department Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which was signed by Secretary of Defense Lloyd Austin and released in full in August 2022. The CHMR-AP was designed to improve protections for civilians in armed conflict and ensure appropriate responses when civilians are killed or injured in U.S. operations. It is the culmination of mounting pressure on the Defense Department to improve its civilian harm policies and procedures following a high-profile August 2021 drone strike in Kabul, Afghanistan that killed 10 civilians, including 7 children, and a series of New York Times investigations that uncovered systemic failures in department policy and practice concerning civilian harm.

The CHMR-AP was welcomed by civil society organizations (see, for example, here and here), who praised its comprehensive nature and potential to address longstanding structural flaws within the Defense Department that have led to preventable civilian harm, inadequate investigations, and a lack of proper redress. Commentators have also noted the need for effective implementation to ensure the action plan’s success, while also criticizing its failure to re-open past cases of credible allegations of U.S. harm that the Defense Department has not acknowledged.

Time for Congress to Step Up Again

Overall, the brevity of the Biden administration’s 2022 report is consistent with its general attitude to the war on terror: deemphasize it, discuss it as little as possible, and sometimes even pretend as though it were over. As one of us has written with Luke Hartig, this approach, while understandable, is misguided.

Permanently winding down the war on terror requires greater transparency from the executive branch, including regarding its own legal theories on the use of force. Congressional reporting requirements, such as that mandating the 1264 report, are helpful when the executive branch takes them seriously. Sadly, in this case, its added value appears to be shining a spotlight on just how much the executive branch treats transparency as a box-checking exercise. In the end, reporting requirements by themselves are insufficient in achieving the disclosure needed to enable a full and frank discussion concerning when and where the United States is using military force and conducting related operations in the name of national security. If Congress wants to better inform itself and the U.S. public—as it should—about these matters of war and peace, it will need to be more assertive in extracting relevant information from the executive branch through sustained and disciplined oversight (as discussed here) of how and on what basis the United States is using force.

IMAGE: A U.S. Army helicopter flies outside of Camp Shorab on a flight to Camp Post on September 11, 2017 in Helmand Province, Afghanistan. (Photo by Andrew Renneisen/Getty Images)

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Meaningful oversight of the U.S. withdrawal and scrutiny of the collapse of Afghanistan’s elected government is needed, but that is not what the House Foreign Affairs Committee is delivering.

The Committee’s hearing focuses on the valor of veterans who spent sixteen days in late August 2021 doing everything they could to rescue their allies. It’s a story that is made for Hollywood and has already been etched on screen in documentaries like Escape from Kabul and action movies like Jake Gyllenhaal’s The Covenant. The truth is always more complicated, and interesting, than what movies make it out to be. The Committee should hear it.

The truth is that American civil society and our Afghan allies in their country begged the United States government and Congress to act, months and even years before the Taliban again stormed through Afghanistan and refugees threw themselves at the mercy of U.S. Marines.

After the Trump administration abandoned Afghanistan’s democratically-elected government and cut a bilateral peace deal with the group that harbored Osama Bin Laden, advocacy groups in the United States witnessed the Afghan military lose confidence in American promises. Once the Biden administration made clear that they would not reverse the Trump-Taliban deal, advocates and Afghans knew it was just a matter of time before the withdrawal began.

When Biden announced the United States would be leaving Afghanistan, a broad swath of the public sprang into action. Faith leaders, historians, retired diplomats, and business leaders joined veterans to create organizations like Evacuate Our Allies (EOA), a coalition advocating for the rapid relocation of thousands of Afghans ahead of the withdrawal. The coalition understood the reasoning behind ending the war; my own organization, Human Rights First, is a founding member of EOA and has a long history of calling for the end of the “forever war.” We also knew that a responsible peace must be grounded in our collective promise to the Afghan people.

We worked toward the relocation of our Afghan allies, and through the summer 2021, our coalition notched important wins for at-risk Afghans, including Afghans who had worked for the U.S. government. In July, the White House commenced Operation Allies Refuge, expediting the travel to safety of a small group of Afghans who served alongside American forces. Though it wasn’t nearly enough, by late August it provided the framework for what would become the largest airlift in history.

Despite these efforts, the Noncombatant Evacuation Operation (NEO) was a disaster. As lines of authority broke down, private citizens, veterans, and relief organizations worked 24-hours per day trying to connect Afghans to safety. Almost none of this work was grizzled vets parachuting into firefights like in Gyllenhaal’s movie. Some important tasks were certainly undertaken in Afghanistan, but most of the work was done at kitchen tables across the world at all hours of the day, fueled by hope, commitment, and pots and pots of coffee. People used their cell phones to guide and support Afghans making harrowing journeys through miles of Taliban checkpoints.

If the Foreign Affairs Committee investigated those stories, it would offer a meaningful snapshot into a time filled with anguish, pain, and limited success. I will never forget some of my own experiences from that time, like being on a call with a woman based in California who was desperate to help her sister’s family in Kabul while I spoke to a contractor with a friend who had a tenuous connection to a Marine at the gate of Kabul’s airport. With our combined help, that family landed in Italy three days later.

The Committee should hear testimony from the many, almost always anonymous, people who are as deserving of mention as the veterans they have invited. To understand the full story of the evacuation, they should hear from military moms who saw Afghans arriving and found them housing, small businesses owners who put to work recently arrived Afghan parolees, faith leaders who welcomed Afghans into their communities, students who took years off from graduate school to help their local resettlement agencies, and many others. Most importantly, they should hear from the Afghans themselves who took control of their destiny and sought refuge in the promise of America. These are the heroes of the evacuation and resettlement effort, because while many groups that formed during the NEO have disbanded, there are many people who stayed with the effort and continue to work to see Afghans to safety today.

Were these everyday heroes to testify, they would be unified in urging Congress to fix the mistakes of the NEO and to help integrate our Afghan allies into American society. They would call for meaningful solutions rather than partisan theatrics and finger pointing.

Meaningful solutions start with Congress passing the Afghan Adjustment Act – a bipartisan piece of legislation that would solve many of the issues that will be raised in the hearing today. Passing this bill would provide stability and an opportunity to put down roots for Afghans who were evacuated by American servicemembers in 2021. It would also create pathways out of Afghanistan for those who have been left behind, so that civil society groups can use established immigration mechanisms to rapidly help Afghans who fought alongside U.S.-led coalition forces in communities like the Afghan Special Forces, Female Tactical Platoons, Air Force, and other specialized groups – all of which are prime targets for the Taliban.

In addition to passing the Afghan Adjustment Act, Congress should codify interagency coordination on relocation efforts with civil society groups. Over the past year and a half civil society groups have been working alongside the State Department to identify at-risk Afghans and provide them a path to relocation and safety. The Coordinator for Afghan Relocation Efforts (CARE) at the State Department meets regularly with experts and advocacy organizations to ensure that the right people are being prioritized for relocations and that efficiencies within the process can be maximized. But this process could be stopped as priorities shift and a new administration could easily shutter this effort. Those who’ve worked so hard on this deserve to have the program, or something equivalent, codified into a statue to honor America’s promises to the Afghan people.

Finally, Congress must create a process to ensure that this never happens again. One of the biggest motivating factors for many civil society groups working on this issue was that, prior to the evacuation, there was no plan to ensure the safety of Afghan allies who would be left behind. We looked at Vietnam and the Gulf War and saw disastrous consequences for our allies when we withdrew, but no one within the government would listen. No one was responsible for ensuring that government policy would honor America’s promise. That’s why Congress must create an Ombudsman for Allies, an office that would ensure that America’s local partners, who believe so much in the promise of democratic ideals, have a voice. If U.S. policy was truly aligned with its values, then perhaps we would not have seen such a chaotic and traumatic withdrawal in August 2021.

***

What happened in 2021 was a dark moment in history for the United States and Afghanistan. Congress can play politics with that history, or use it as another impetus to keep promises the United States made to its allies. Beyond needling the Biden administration for its failures in the withdrawal from Afghanistan, Congress should recommit to the United States’ broken promise to the people of Afghanistan by seeing the whole story of the withdrawal and working with civil society on meaningful solutions.

Image: A view of the U.S. Capitol (via Getty Images). 

The post As Afghanistan Hearings Begin, Congress Must Rise Above Partisanship to Find Meaningful Solutions appeared first on Just Security.

According to the Netherlands, the quala that was bombed, “quala 4131,” was a lawful military objective because it was used by the Taliban to attack NATO forces. However, the plaintiffs – surviving residents of quala 4131 and next-of-kin of deceased residents – denied that it was used by the Taliban and argued that it was a civilian object, occupied by civilians. Attacking the quala was therefore a violation of IHL’s principle of distinction, the plaintiffs submitted. The principle of distinction provides that those involved in armed conflict need to distinguish between civilians and military objectives. 

The court did not conclude that the quala could not have been a lawful military target. But it concluded that the Dutch state, 15 years later, could insufficiently substantiate why the military determined this quala as a military objective. The state had argued that the quala had a strategic position in the Chora Valley, that there was enemy fire on the day of the bombing from the direction of the quala, and that there must have been additional intelligence on the basis of which the quala was identified as a military target. However, concrete intelligence could not or no longer be discovered. According to the court, it may well have been a military target, but it is the duty of the state to substantiate that, which the state insufficiently did. Accordingly, the case was decided in favor of the plaintiffs. 

This case therefore turned on how much information the military has to record and keep stored so that it can substantiate why “a reasonable commander” could determine a location as a military target, which the court also noted must be retained for the duration of the statute of limitations. In the Netherlands, this is five years. Because (most of) the plaintiffs had communicated to the court within that time limit, the case eventually made it to a judgment 15 years later. 

The Battle of Chora

This case arises out of events during the mid-June 2007 battle of Chora, Afghanistan. After 9/11, U.N. Security Council Resolution 1386 (Dec. 10, 2001) authorized the establishment of the International Security Assistance Force (ISAF) and the use of “all necessary means” to assist the Afghan authorities to maintain security, in particular in relation to al-Qaeda and the Taliban. ISAF came under NATO command in August 2003. 

In its judgment, the court relied on the following facts related to the battle of Chora. Between Aug. 1, 2006, and Aug. 1, 2010, the Netherlands was the “lead nation” in the southern Afghan region of Uruzgan. The Dutch supreme commander of the armed forces maintained so called “full control” over all Dutch military units. The locally stationed Dutch contingent commander was the “red card holder,” meaning that he was authorized to prevent the deployment of Dutch military when such would not be in accordance with the conditions the Dutch government had provided. 

The command center of Task Force Uruzgan (TFU) and Camp Holland were located in Tarin Kowt, close to the strategically placed Chora Valley on a crossroads of routes to the Gizab area in the north, Khaz Uruzgan in the east, Deh Rasnan in the south, and the Baluchi valley and Tarin Kowt in the west. From April 2007 onwards, two to three platoons (of 20-30 troops each) were permanently stationed in Chora pursuant to intelligence about an upcoming attack by the Taliban to overtake the valley. Indeed, early June saw an increase in Taliban fighters in the area, and in the early morning of June 16, groups of Taliban attacked the Chora Valley from the east and west and reportedly committed atrocities against civilians. 

After a day of heavy fighting, the police posts in the west were lost to the Taliban, and around 6:30 pm, the intensity of the fighting decreased. ISAF units were pushed back to an area of around 4 square kilometers around the strategically positioned “White Compound,” which the TFU commander assessed as “very threatening”: the TFU needed to either retreat from the Chora Valley or stand and fight. At 8 pm, the TFU commander took the stand-and-fight decision, requiring “all necessary means,” partially to protect Afghan civilians against being killed by the Taliban as reprisal, but also for ISAF’s credibility and Chora’s militarily strategic position. 

Directly after the stand-and-fight decision, the TFU commander requested ISAF’s Regional Command South (RC(S)) provide air assets to attack Taliban targets that were identified earlier, including targets that could no longer be directly observed. This was supported by fire from a TFU Pantserhouwitser. 

The Targeted Quala: Civilian Objective or Military Target?

In the evening of June 16 and the following night, F-16s shot 28 guided bombs, of which 18 were dropped on six or seven qualas in the residential area of Chora, including quala 4131. During the bombing, quala 4131 was completely destroyed, including the quala’s mosque, and 18 people from four families lost their lives, several others were wounded, and 30 animals were also reported to have been killed. 

The TFU Chief Joint Fires led the aerial support. According to his report, at 3:10, 3:32 and 3:43 am (on June 17), quala 4131 was bombed as an enemy firing position, after positive identification of the target by the F-16 pilot as the previously identified quala 4131, and signing off by JTAC. JTAC is the Joint Terminal Attack Controller responsible for authorizing an attack after positive identification of a target. Their report includes a statement that the target had been previously determined as a military target by their “own troops in front.” Prior to the F-16 bombings, several Afghan local authorities were given advance warning that civilians had to leave a so-called “engagement area.” A local authority confirmed prior to the bombings that the civilians had left the designated area. 

Twenty hours prior to the bombing, at 6:58 am on June 16, quala 4131 had been identified as containing enemy units. Around noon, 15 hours prior to the bombings, there was more enemy firing coming “more or less from the direction of quala 4131,” which was reported to the command post but not documented in a log. Around 5 pm, the platoon was again fired at, but this time from approximately 800 meters west of quala 4131. Shortly thereafter, at 5:30 pm, (suspected) hostile units were spotted at approximately 400 meters east from quala 4131 and were fired at from the air by ISAF. This contact was not documented in a log. 

According to the court, these last two instances were insufficiently related to quala 4131 to qualify as circumstances on the basis of which quala 4131 could be determined as military target. From the earlier instances, it was not clear that fire actually came from quala 4131, rather than as part of Taliban movement that passed quala 4131. Moreover, the court concluded that these circumstances were insufficiently recent to justify the bombardment many hours later in the middle of the night, particularly because the court found no evidence that the assumption that quala 4131 was used by the Taliban was verified. 

During the proceedings, the Dutch state acknowledged that the information now available in and of itself would be insufficient to justify the bombing, and that more recent information on the status of quala 4131 would have been required. The state thereby argued that it can be assumed that intelligence was available that one or more identified Taliban fighters were in quala 4131, but that not all communication was recorded and stored. 

The court rejected this argument as insufficiently concrete. The court thereby emphasized that the state did not argue that the intelligence had really existed but was no longer traceable, or that the substance of certain intelligence could not be shared for security reasons, but that the intelligence must be assumed to have been available. Yet, the court was not convinced that this intelligence really was available, since the target report had said that the identification had been conducted “by own troops in front,” which the court interpreted as “own ground forces in the area.” There was no guarantee this would have been sufficient intelligence for a determination that the quala was a legitimate target, because the JTAC positive identification was no more than a verification that the earlier determined target was indeed the target in range of the F-16, rather than a verification of the military use of the residential complex. 

Violation of International Humanitarian Law’s Principle of Distinction

The battle of Chora has been subject to investigation by the Dutch Ministry of Defense, the U.N. Assistance Mission in Afghanistan (UNAMA), the Afghan Independent Human Rights Commission (AIHRC), and NATO. While the NATO-ISAF commander’s investigation raised concerns that it may not have been sufficiently possible to distinguish between military targets and civilian objects without direct observation of the targets, this was overruled by the NATO Supreme Allied Commander Europe and the NATO Secretary General, who concluded that TFU acted in accordance with IHL. The Dutch state, UNAMA, and AIHRC reached the same determination. On that basis, the Dutch Public Prosecutor’s Office concluded it was unnecessary to investigate further whether war crimes would have been committed.  

However, in a civil litigation brought by the surviving quala residents and next-of-kin against the Dutch state, the District Court of The Hague (a domestic court within the Dutch legal system) agreed with the plaintiffs that IHL’s principle of distinction was violated. While this is a torts case before a court that does not usually deal with IHL, torts law assesses whether an unlawful act was committed by violating a plaintiff’s rights. The court explained that it applied IHL because the facts occurred during an armed conflict and that IHL then governs the norms of what the Dutch military were allowed to target. The court applied Articles 48, 52, and 57 of Additional Protocol I to the Geneva Conventions as reflections of customary international law. 

Article 48 provides that parties to a conflict need to distinguish between civilians and combatants and between civilian objects and military objectives, and direct their operations only against military objectives. Article 52 provides that with regard to otherwise civilian objects such as a house, military objectives are only those that make an effective contribution to military action, and that in case of doubt, it shall be presumed that it is not used to make an effective contribution to military action. Article 57 concerns the obligation to take precautionary measures more than the principle of distinction but also provides that everything feasible needs to be done to verify that objectives that are to be attacked are not civilian. Article 57 for instance provides for the obligation to give effective advance warning of attacks that may affect the civilian population, which, according to the judgment, the Dutch military at least seems to have tried to do and that they had received confirmation that civilians had evacuated from the area through a local Afghan authority. The court did not address this point further, and it remains unclear how reliable that confirmation was, whether the entire area was evacuated, whether all civilians had been evacuated, for how long it remained evacuated, and whether the military tried to verify that the area was evacuated.  

However, the court’s main reason to conclude that IHL was violated was because, when a plaintiff claims that a location is civilian, the state needs to be able to show on what basis a “reasonable commander” could determine that the civilian location has become a military target. The court further concluded that the state had an obligation to verify that this was still the case after a significant time lapse between identifying a location as military object and bombing it, given that the target may not still be used for military purposes.

Aftermath

In the Feb. 3 announcement that the Netherlands would not appeal the judgment, the Minister of Defense wrote that – 15 years after the events in Chora – the state is unable to provide further information to substantiate the decision to qualify the quala as military objective. She thereby emphasized that the court explicitly said that the judgment does not mean that the Dutch armed forces committed a war crime, nor that the court concluded that the quala that was bombed could not indeed have been a lawful military target. 

So what is the takeaway? According to this Dutch civil court, the military should have documented their decisions better and/or stored that information for at least the duration of plaintiffs’ right to go to court. While it may appear as a lot to ask from the military to not only distinguish between military objectives and civilians but also to document and preserve related decision-making in ongoing combat, only then can victims exercise their right to a remedy if mistakes were made. The military cannot just be assumed to have followed the laws of armed conflict: they need to be able to explain that they did. The Netherlands accepts the decision.

Yet, in the Dutch media, the decision was criticized by some military personnel who believe that these courts don’t appreciate the complex and time-pressured circumstances and judge from hindsight. This was also a widely aired response when the Hague District Court previously also found the state (partially) responsible for a due diligence violation related to the Srebrenica genocide. Marten Zwanenburg raises that the court imposes a heavy burden on the state to record and preserve relevant information during armed conflict. 

Courts are often seen as an outsider that unfairly mix themselves in military situations that they have no expertise on. However, while courts should be careful and have a realistic appreciation of those complex circumstances, the exercise of power requires checks and balances. Rather than an unwelcome outside interferer, the judiciary is there not only to help victims seek justice, but also to help the military improve their procedures where they insufficiently prevent unnecessary casualties. This is not only in the interest of victims, but also of the military that already too often return from conflict traumatized. 

Whether or not the Ministry of Defense may have shared some of the concerns, their response has been to accept the judgment and not appeal, to focus on (further) improving their procedures and to pay compensation to the plaintiffs. In her Feb. 3 letter to parliament, the Minister of Defense wrote that the military is working on improvements in information-driven action and mission-archiving and that military operatives require better support in doing so in future missions. 

Ideally, a judgment like that in the Chora case can provide, in addition to justice for the plaintiffs, a constructive effect towards a better functioning of the military consistent with the principles of IHL, which, when properly implemented, benefit both the military and civilians.

IMAGE: In this January 21, 2010 photograph, Dutch battle group platoon commander Lieutenant Rik (L) speaks with an Afghan village elder during a patrol in Chora valley in Afghanistan’s southern Uruzgan province. (DESHAKALYAN CHOWDHURY/AFP via Getty Images)

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In foreign policy debates, values and interests are usually counterposed. International Relations scholars make a distinction between realism and idealism. Realism is about the pursuit of national interest by military force, if necessary, through “blood and iron” to quote German Chancellor Otto von Bismarck. Idealism, by contrast, is about the construction of a peaceful, rights-based international system.

These terms are misleading. It is no longer realistic to pursue national interests through military force, as the United States discovered in Vietnam, Afghanistan, and Iraq, and as Russia is discovering in Ukraine. All forms of military force have become so destructive that it has become almost impossible to achieve military superiority, to use military force for what Thomas Schelling called “compellence,” except against unarmed civilians. Moreover, in a globally interconnected world, it is increasingly difficult to preserve peace and security unilaterally, something small states have long understood. National security, nowadays, can be achieved only through international security; we are only as safe as the world in which we live. What is known as an interest-based or realist approach is usually associated with an old-fashioned conception of military power. What used to be called idealism is the only realistic option for humankind in the face of multifaceted threats – from war to climate change to infectious disease, and so on.

U.S. President Joe Biden talks about a values-based approach to foreign policy. Yet this is true of all American presidents—even George W. Bush claimed he was promoting democracy and American values when he invaded Iraq. The most recent U.S. National Security Strategy contains an odd and contradictory mixture of language about both interests and values. There is a lot of emphasis on pursuing and defending America’s interests and the importance of military strength, which has also been the staple of past U.S. administrations. At the same time, the strategy is peppered with statements about values. Perhaps what is new is the way those values have been spelled out – the need for a rules-based international system that respects universal rights and the need to address shared global challenges such as climate change, disease, energy shortages, and transnational terrorism.

There is also an uncomfortable conflation of the values-based conflict between democracy and authoritarianism and the geopolitical competition between the United States, on the one hand, and Russia and China on the other. While Biden insists he does not want to start a new Cold War, it was precisely the military framing of the contest between democracy and totalitarianism that defined the Cold War period and prompted the West to deem military partners such as Turkey or Brazil as “democratic,” even when that was far from true. There is indeed a struggle between democracy and authoritarianism that is much broader than U.S. competition with Russia and China and cannot be captured purely in military terms, even if it is currently being fought out in Ukraine through military means. The ideological struggle against authoritarianism is playing out in Hungary, India, Iran, Israel, and even within the United States with the rise of Trumpism.

By insisting on the salience of geopolitical competition, however, the United States is failing to uphold a key pillar of a values-based approach to foreign policy—the salience of human rights. A genuine values-based approach needs to be able to integrate and prioritize human rights at every level, including in military planning. Military strength is the central component of geopolitics. A human rights-based foreign policy might require the use of force in some circumstances but instead of a military posture primarily designed for geopolitical competition with Russia and China, such an approach requires developing civilian and military capabilities for certain limited tasks: to defend against aggression, to manage emerging crises, or to contribute to peacekeeping missions. A change in the role and nature of military force should be central to any shift towards value-based foreign policy.

Importantly, defending against aggression is distinct from engaging in geopolitical military competition. During the 1980s, amid concerns about the offensive posture of NATO and the dangers of weapons of mass destruction, proposals were put forward for “defensive deterrence”— deterring foreign attacks through a credible conventional defensive posture rather than through the threat of nuclear or conventional retaliation. Defensive deterrence, or deterrence by denial, aims to avoid the kind of competitive armament that characterizes geopolitical competition. It also eschews the kind of nuclear modernization being undertaken at present in a misguided effort to compete with both China and Russia, with potentially catastrophic results.

Crisis management and peacekeeping missions, moreover, aim to reduce incentives for violence, rather than seeking to achieve conventional military victories or negotiated, top-down agreements. Central to this goal is the establishment of legitimate and inclusive political authority and the rule of law. Such interventions should be civilian-led and involve a combination of civilian and military actors. The tasks of the military in these circumstances should include protecting civilians from attack and creating a safe environment in which a legitimate political authority can be established; monitoring and upholding local peace agreements and ceasefires as part of multi-level peace building involving civil society, especially women; establishing humanitarian space through corridors and safe havens that allow for the delivery of humanitarian assistance; and arresting war criminals.

A human rights-based approach to terrorism, meanwhile, would look very different from the current iteration of the “war on terror.” In Afghanistan, for example, the United States has long relied on military force, rather than other tools of statecraft, to counter perceived threats to Americans. This approach did not work – it fueled the insurgency and empowered corrupt commanders who ultimately undermined the legitimacy of the Afghan government. The U.S. strategy in Afghanistan also failed to consider the security of ordinary Afghans. It would be unthinkable to conduct air strikes inside the United States, for example, in a hunt for suspected terrorists, not just because of the potential for civilian harm but also because of the importance of due process and the provocative and escalatory nature of any air strike. The United States’ continued reliance on “over-the-horizon” strikes in Afghanistan and elsewhere is not only contrary to a values-based approach to security, but it may also be counter-productive from a more traditional conception of national security, particularly since such strikes have often fueled local grievances and terrorist recruitment efforts.

More than two years into the administration, what can we say about Biden’s values-based approach to foreign policy? The withdrawal from Afghanistan, without inclusive peace talks and agreed security arrangements, was a tragedy that failed to consider the security of Afghans, especially women and girls. And the campaign of “over-the-horizon” targeting of suspected terrorists is completely contrary to a rights-based international rule of law. On the other hand, the policy towards Ukraine has been exemplary. The Biden administration has been the largest provider of military and economic aid and has encouraged allies to provide support. At the same time, it has been careful not to risk escalation by refusing direct NATO intervention and imposing clear restraints on possible violations of Russian territory. When the Russian regime dropped hints about using nuclear weapons, the discussion about responses focused on conventional and political responses. It is, of course, a tightrope between helping Ukraine to win and preventing a world war – a tight rope made harder by the presence of large numbers of weapons mass destruction in both Russia and the United States.

NATO’s new Strategic Concept, the outcome of the June 2022 Summit in Madrid, emphasizes the need to integrate human security “across all our core tasks.” And several NATO members, notably the United Kingdom, are mainstreaming human security throughout the armed forces. The same needs to happen in the United States. Human security, or a human rights-based approach to security, offers an alternative to both geopolitics and muscular counterterrorism. It would involve far-reaching changes in the composition and type of military forces, and it would give substance to the idea of a values-based approach to foreign policy.

IMAGE: Helicopter hovering above an American flag (via Getty Images)

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The administration’s instinct toward silence on terrorism is understandable. Successive administrations since 9/11 have found themselves stuck in a constant political-media firestorm around terrorism. President Barack Obama pledged to take the United States off of a perpetual war footing and publicly introduced exacting standards for the use of force outside “areas of active hostilities,” yet his foreign policy legacy is inextricably tied to controversies around drone warfare and failure to close the detention facility at Guantanamo. President Trump’s erratic policies on Afghanistan and ISIS were widely reported, dissected, and used to argue against his foreign policy competence. His Secretary of Defense resigned over Trump’s announcement of a precipitous withdrawal from Syria. As a presidential candidate, Biden pledged to end the Forever Wars and his administration heralded the withdrawal from Afghanistan as a major step in that direction. But a disastrously fumbled withdrawal created the most devastating media and political fallout of his presidency. The political lesson seems to be: whatever you do on terrorism, do it quietly and hope nobody notices. 

Indeed, this seems to be the Biden team’s approach – and not many have noticed. The Biden administration has deprioritized counterterrorism in both word and deed. The United States is conducting fewer airstrikes in fewer countries than during the height of the war on terror, due to both affirmative decisions by the administration, including withdrawing from Afghanistan, and pre-existing trends, such as the destruction of ISIS’s territorial “caliphate” in Iraq and Syria. With the exception of Somalia – where hundreds of U.S. forces were deployed to advise, assist, and conduct regular “collective self-defense” strikes against al-Shabaab – U.S. counterterrorism forces appear to be operating in fewer numbers and at a lower tempo than during previous administrations. And Russia’s war on Ukraine and competition with China consume the national security policy bandwidth that might previously have been dedicated to counterterrorism. 

This pivot from the counterterrorism wars has in many respects been conducted with little fanfare from the White House. Although President Biden has publicly touted major wins, such as the killing of al Qaeda leader Ayman al Zawahiri in Kabul, the president has not delivered a major policy speech on international terrorism – and aside from a speech from the president’s counterterrorism advisor in 2021, his top officials have done minimal significant public engagement. Two years into the administration, there is still no public national strategy for international counterterrorism.  

Although quietly winding down the war on terror has its merits—including in minimizing partisan backlash—the Biden administration has not struck the right balance on public disclosure if the goal is to have an enduring impact. Greater transparency is needed to permanently rein in this more than two-decade conflict. The policy-based restrictions and restraint exercised by the administration are mutable and can be waived away by a new president. Durable restraint requires legislative reform, particularly overhauling the 2001 Authorization for the Use of Military Force (2001 AUMF) and the 1973 War Powers Resolution. But any new legislation should be informed by the United States’ past and present conduct of the war on terror and the executive branch’s own legal theories on the president’s authority to use force. That requires an appropriate public dialogue to inform legislation, which is possible only if we have greater transparency. 

On a more fundamental level, it is simply poor governance for the United States to continue waging a war in the name of the American people without telling either the American people or the citizens of the nations where it conducts operations what it is doing. This is not how democracies are supposed to operate, and we should expect more.

To this end, the Biden administration should improve transparency, especially along two key parameters: (1) over classification and (2) failing to adequately explain its legal theories for using force or in proposals for reform.

Over Classification

The U.S. public doesn’t know the full extent of the war on terror, because Americans do not even know precisely who the United States is still fighting. As one of us has previously written, the full list of groups and individuals covered by the 2001 AUMF remains classified. Following a brief period at the end of the Obama administration when the executive branch publicly disclosed this list, the Trump administration reverted to secrecy. In an April 2018 report provided to Congress consistent with Section 1264 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018, the Trump administration explained that the report’s classified annex contained information about the application of the 2001 AUMF to particular groups and individuals. This secrecy persists in the Biden administration.

Nor does the public know the policies, principles, and procedures which govern direct action. Like both the Obama and Trump administrations, the Biden administration has recently issued its policy framework for direct action, in the form of a Presidential Policy Memorandum (PPM). Although an administration official speaking on background provided a description of the PPM to the New York Times’ Charlie Savage, the PPM itself remains classified. Not only has the administration failed to release a redacted version of this policy framework, it has not even released a fact-sheet summarizing its drone-strike playbook, as the Obama administration did from the outset. 

Charlie Savage and The New York Times have since sued the Pentagon under the Freedom of Information Act (FOIA) seeking the release of the PPM. Twice before, FOIA lawsuits have successfully compelled the release of the same policy framework issued by Obama and by Trump. It is unsettling that the Biden administration is compelling another FOIA lawsuit rather than release the information proactively. Among other things, it is a missed opportunity to release a properly redacted version and to demonstrate a commitment to increased transparency.

Failures to Explain

Yale Law Professor and former Legal Adviser to the Department of State Harold Hongju Koh has argued that government legal advisers have a “duty to explain” their government’s actions, including to the public. Thus far, the Biden administration has not fulfilled this duty regarding the use of force by the United States, including with respect to reoccurring hostilities with what it terms “Iran-back militia groups.”

One reason for the administration’s failure to more proactively explain its legal theories for using force may be the absence of an official who has often played the role of “explainer-in-chief”: a Senate confirmed State Department Legal Adviser. Koh and his Senate-confirmed successors as State Legal Advisers, such as Brian Egan, articulated the executive branch’s theories for using force, often in public speeches. Although the administration nominated Columbia law professor Sarah Cleveland for this position, her nomination to the State Department was quietly dropped and she was instead named to a seat on the International Court of Justice. Without a political appointee filling this role, the administration is left with a void, with no high-ranking official acting as a U.S. spokesperson on legal issues relating to the use of force. The DOD General Counsel, Caroline Krass, (also a former CIA General Counsel and long-time DOJ Office of Legal Counsel official before that) has also been publicly silent on counterterrorism, in contrast to some of her predecessors (see here, here, and here).

The administration also lacks initiative in reforming the 2001 AUMF, the principal statutory basis for the U.S. war on terror. Although the administration has expressed a vague willingness “to explore with Congress the contours of a new or updated AUMF,” the executive branch has not put forward any concrete proposal for revising this outdated and capaciously interpreted war authorization, or any specific parameters within which it would be willing to negotiate with the foreign relations committees. Without leadership from the administration, Congress has neither prioritized reforming the 2001 AUMF nor coalesced around any particular parameters, much less a specific legislative proposal.   

In addition to failing to proactively and publicly share its legal reasoning or offer proposals for reform, the Biden administration has also declined to respond to inquiries from Congress regarding its theories for using force. For example, in Syria and Iraq, U.S. armed forces remained deployed ostensibly to ensure the “enduring defeat” of ISIS. Yet during the Biden administration, the United States has also repeatedly used force against unspecified “Iran-backed militia groups.” Most recently, on January 20, 2023, U.S. forces and their Syrian partners at Tanf garrison again came under attack from drones launched by unidentified (though likely non-ISIS) attackers. U.S. hostilities with these groups, at Tanf and elsewhere, raise a number of legal questions. Indeed, in a November 2021 letter to President Biden, a bipartisan group of members of the House of Representatives posed questions about the legal basis for hostilities in Syria, particularly those involving non-ISIS forces. To date, the White House has not responded. Similarly, the White House did not reply to a July 2021 letter from Rep. Ilhan Omar (D-MN) raising questions about U.S. airstrikes in Somalia, including regarding the legal basis for the strikes. The administration’s May 2022 decision to deploy hundreds of troops to Somalia was done with virtually no public explanation of the threat or the broader strategy. 

When it comes to accounting for civilian casualties, the Biden administration is complying with pre-existing legal and policy requirements to disclose the total number of strikes it conducts, but it continues to avoid or minimize discussing the most controversial strikes. These are the operations where official U.S. reports and accounts by non-governmental organizations diverge. U.S. officials met a string of damning New York Times reports over the past 18 months, particularly around civilian casualties from U.S. operations in Syria, Iraq, and Afghanistan, with solemn appreciation for the role of the free press but little in the way of disclosures that would help us understand what went wrong or why the U.S. government reached a different conclusion.

A Way Forward

The Biden administration should be commended for curtailing elements of the U.S. war on terror. Yet permanently reining in this conflict requires public deliberation that the administration’s lack of transparency inhibits. The current approach also runs the risk of masking the true costs of the counterterrorism fight. More than 20 years into this set of conflicts, the administration should be engaging in a dialogue with Congress and the American people about the nature of the threats to the United States, the range of ways to mitigate those threats, the pitfalls and risks of U.S. responses, and the appropriate legal authorities needed to keep us safe while avoiding endless war.

To promote lasting reform, the Biden administration should take a number of steps both to pull back the curtain on the counterterrorism wars  and to enable appropriate legislative reform. At a minimum, this would include:

• Releasing a public National Strategy for Countering International Terrorism, accompanied by speeches and public dialogue from top administration officials to explain it.
• Releasing more information about who the United States is at war with and how it intends to fight them, including by declassifying the list of groups the executive believes to be covered by the 2001 AUMF.
• Disclosing the text of the PPM, with minimal redactions, to better explain the standards under which the United States uses force. 
• Nominating a legal adviser to the State Department and empowering this official to negotiate reforms to the legal frameworks for counterterrorism and serve as “explainer-in-chief” on legal issues relating to the use of force.
• Thoroughly answering congressional questions about ongoing campaigns in countries such as Syria and Somalia. 
• Disclosing more details about some of the most controversial strikes and developing a process for greater dialogue with civil society about assessments of civilian casualties and resolving analytic differences.
• Putting forward a proposal for reforming the 2001 AUMF that explicitly specifies against whom force may be used, specifies where force may be used, and contains a sunset provision. (For example, see this framework from Tess Bridgeman, Ryan Goodman, Stephen Pomper, and Steve Vladeck.)

The process of increasing transparency won’t be easy. There will be institutional resistance from elements within the government that default to secrecy, as well as from those who are simply risk averse. The administration also risks political blowback and the return of the hyper-politicized terrorism discussions that have defined the debate for more than two decades. But a democracy should not indefinitely wage war in the shadows, and the administration needs to be ready to work through tricky politics in favor of a better and sustainable future. By being more transparent, the Biden administration could put in place the legislative boundaries and policies necessary to ensure that America makes a definitive turn away from endless war.

IMAGE: In this photograph taken on July 31, 2022, smoke rises from a house following a US drone strike in the Sherpur area of Kabul. US President Joe Biden announced on August 1 that Al-Qaeda chief Ayman al-Zawahiri had been killed by a drone strike in the Afghan capital. (Photo by AFP via Getty Images)

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When the Taliban took Kabul in August 2021, Afghan champions of the rule of law and human rights were caught in the crosshairs. Practically overnight, lawyers, judges, prosecutors, and other professionals working within the legal system to advance justice – especially women –became targets of the new regime due to their perceived association with the former government or simply due to their gender.

Now, 17 months later, many of them remain in highly precarious and unsafe situations, and those lawyers who still practice face an incredibly challenging environment. With this week marking the international Day of the Endangered Lawyer, the international community has an opportunity to reflect on its urgent moral obligation to do far more going forward to support these individuals.

Targeting the Afghan Legal System

Women have undoubtedly borne the brunt of efforts to target and marginalize those in the legal profession. The Taliban have attempted to effectively ban all women from participating in the legal system. These de facto authorities removed more than 260 women judges – more than 10 percent of the bench – and women lawyers have been deprived of permission to practice law via a discriminatory relicensing process open only to men. Under grave threat, many women judges fled the country or remain in hiding. Not only are women lawyers in danger and their livelihoods upended, but the valuable services they provided – including to address gender-based violence – have been largely wiped out.

Officials who investigated, prosecuted, and sentenced members of the Taliban face extremely serious risks to their safety and wellbeing as a result of their previous work. Reports indicate that convicted members of the Taliban, as well as other criminal offenders who were released by the Taliban, have sought to carry out reprisals against prosecutors and judges. Many prosecutors remain in hiding, and although it is difficult to verify precise numbers, we have received extensive and gruesome documentation of more than a dozen killings by unidentified individuals.

These purges and attacks have occurred amid a broader dismantling of the independent legal system, and its replacement with a de facto system that flagrantly violates international standards, including the right to be presented before a judge soon after detention, the right to a fair trial, and prohibitions on gender discrimination. The Constitution has been suspended, prosecutors have been sidelined, and judges have been replaced primarily by Taliban members with basic religious education and little to no legal training. There are currently no procedural or substantive legal statutes on which lawyers and judges can rely. Some specialized courts, including those devoted to handling gender-based violence, have been dissolved entirely. What is left is an all-male legal system implementing the Taliban’s version of Sharia law. In sum, it is a debacle for human rights.

Despite these immense obstacles, lawyers and other legal professionals still in the country are striving to defend rights and provide legal services to Afghan people. Women lawyers are persevering, finding new ways to provide much needed legal assistance. Some have reportedly taken on advisory roles, offering advice and drafting documents for male colleagues, and others have reportedly been able to work at legal aid organizations and law offices.

The International Community Should Support Lawyers in Afghanistan

In this context, international actors can and should do far more. Ad hoc efforts, some carried out by professional associations, have done very impressive work to organize the evacuation of a significant number of people under threat and offer support to those in exile. The International Association of Women Judges worked to relocate women judges. Bar Associations in many places organized to help Afghan lawyers and judges in exile. However, a far more systematic and concerted approach is needed.

At a time when the international community is withdrawing support from abusive de facto authorities in Afghanistan, legal actors who are still working to advance justice and defend human rights deserve more support, not less. These lawyers, legal aid providers, and non-governmental organizations need more resources, including increased and accessible financial support. Donors and partners should pay particular attention to addressing the situation faced by women lawyers, and to efforts to support the realization of women and girls’ rights, and take these issues into account in their programming, provision of financial support, and engagement on the issue broadly. This will require creativity and persistence given escalating restrictions on women’s participation in public life and associated risks.

Countries, including those in the region, should provide safe passage and protection to actors involved with the legal system who are at risk of reprisals. Many who have already fled the country remain in insecure positions, legally and financially. They should receive secure legal status, social protection, and assistance with obtaining the necessary training and credentials in order to find employment. Many who are exiled are poised to make career-long contributions, and their training and knowledge should not be lost.

Moreover, much more advocacy and persuasion need to be done to convince the Taliban to change their policies to comply with international human rights treaties that the State of Afghanistan has ratified. At the very least, they should reinstate the rights of women lawyers and allow them to re-register and practice alongside their male colleagues. And they should ensure the protection of lawyers and judicial officials who are being harassed and worse for pursuing their professional duties.

For two decades prior to the fall of the Islamic Republic of Afghanistan, the international community encouraged, trained, and supported Afghan judges, lawyers, and prosecutors to stand up for the rule of law and human rights. It cannot look away now. Instead, it should undertake commensurate efforts to assist these professionals to uphold these universal tenets, whether they remain in Afghanistan or not.

IMAGE: Photo via Getty Images

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