10/16/2012 11:04 am ET Updated Dec 16, 2012

Post-War Counterterrorism

Does the United States need to be trapped in a perpetual global war on terror? Is there a more effective U.S. counterterrorism strategy going forward? How the next administration answers these questions will have long term consequences for American security, human rights and American global leadership.

The United States initiated the Afghanistan war when Congress authorized military force against those who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons..." That war is winding down. The U.S. has withdrawn the last of its surge troops deployed when Obama took office. The Pentagon plans to terminate combat operations by the end of 2014. The administration is seeking to negotiate a peace settlement with the Taliban, though that is not determinative of whether the war ends.

The war in Iraq is over, a war of choice initiated after bad intelligence suggested Saddam Hussein possessed weapons of mass destruction that he intended to use against the United States. While the Iraq Authorization to Use Military Force remains extant, there is no doubt that the war against Iraq has ended.

With the Iraq war over and U.S. military deployment in Afghanistan winding down, the United States needs to recalibrate its counterterrorism strategy. The Obama administration says that the United States is currently at war with al Qaeda and its affiliates, suggesting that they have expanded the war on terror to Yemen, Somalia, and perhaps even Mali and beyond. Is that an effective strategy to meet the threats we currently face?

Under international law, the U.S. has not demonstrated that an armed conflict exists against al Qaeda in the Arabian Peninsula (AQAP) based in Yemen, al Qaeda in the Islamic Magreb (AQIM) based in Algeria and Mali, the militant Islamist group al Shabab based in Somalia, or other alleged "associated forces." The International Committee of the Red Cross, in interpreting the Geneva Conventions and other seminal documents governing war, concludes that armed conflict between a state and a non-state actor, like al Qaeda, exists only when the "armed confrontation... reach[es] a minimum level of intensity and the parties involved in the armed conflict... show a minimum level of organization."

Secretary of Defense Leon Panetta has claimed that al Qaeda is on the verge of strategic defeat. The U.S. has not demonstrated that al Qaeda's affiliates are anything more than an inchoate band of "thugs [with] murderous aspirations," as White House counterterrorism advisor John Brennan described them.

No executive, though, wants to relinquish its war power, especially when we are always one terror attack in Libya away from critics claiming he is soft on terror. Nor does the Obama administration want to tell a decidedly war-weary American public that we will be at war forever.

There is a path forward, and it is arguable that the United States is in the middle of a significant shift in counterterrorism policy that will both improve American security and global leadership while ensuring full respect for the rule of law that has been upended the past decade (torture, detention without trial, militarized courts).

The future of U.S. counterterrorism strategy, that is currently underway, has three prongs. The first component of U.S. counterterrorism strategy is a sophisticated global collaboration between law enforcement and intelligence to identify and disrupt terrorists before they do harm, and prosecute those who should be brought to justice. Since 9/11, the United States has significantly increased the capability and capacity of our intelligence and law enforcement agencies. The prosecution of more than 500 terror suspects since 9/11 demonstrates our robust response. Sending in the FBI to investigate those who were responsible for the murder of American diplomats in Benghazi is a much smarter response to terrorist mobs than declaring a new war or sweeping masses of people into Guantanamo.

The second component of U.S. counterterrorism strategy is security arrangements with nations who need assistance battling insurgents within their borders. In Yemen, the United States has a security agreement where the United States provides a limited number of Special Forces, military equipment like drones and other financial assistance that enables Yemen to target not only insurgents intent on destabilizing the government of Yemen, but intent on attacking U.S. interests. The arrangement allows the United States to target terror threats for a fraction of the cost of the wars in Iraq and Afghanistan, and not commit the U.S. to another ground war. The U.S. must, however, condition its assistance on Yemeni compliance with the rule of law. Administration officials recently confirmed in The Washington Post that it is exploring how to assist other nations in North Africa confront radical elements of al Qaeda seeking to take root in their homelands.

The third component of the U.S. counterterrorism strategy is what Secretary Clinton and former Secretary of Defense Robert Gates call smart power. As General Petraeus has said, we cannot kill our way out of a war on terror. Decapitating al Qaeda number-twos does not change the circumstances on the ground that lead to a sustainable peace. The long term strategy must focus on economic and political solutions.

Peter Beinart observed that "Nations that truly are permanently at war generally go bankrupt or become police states or both." Luckily, there is a way forward. A post-war counterterrorism strategy that elevates global law enforcement and intelligence responses, reduces military commitments away from war, and promotes economic political solutions provides significant benefits. It saves American lives and dollars; emphasizes global partnerships and collaboration; disrupts diffuse networks of criminal activity through intelligence; builds conditions on the ground that lead to longer term stability, prosperity and security; equips our armed forces to prepare for war rather than sporadic threats; and restores the U.S. commitment to the rule of law and human rights. After fighting the longest war in U.S. history, a smarter counterterrorism strategy going forward is essential.