06/06/2012 03:51 pm ET Updated Aug 06, 2012

The Death of al Qaeda's #2: Time to Wind Down the War on Terror

The death of al Qaeda's second-in-command is being hailed as a major victory for the U.S. war against terrorism. Indeed, it confirms that the al Qaeda that attacked the United States more than a decade ago has been largely destroyed. As Peter Bergen, CNN national security analyst and author of Manhunt: The Ten-Year Search for bin Laden, From 9/11 to Abbottabad, puts it: "The terrorist group that launched the 9/11 attacks is now more or less out of business."

That makes this the time to start publicly acknowledging we've won the war the United States declared in 2001 against those who "planned, authorized, committed or aided" the September 11 attacks, and those who harbored them. It's time to embark on a more rational counterterrorism policy.

As Michael Tomasky writes in the Daily Beast, at this point, "the 'war on terror' is just this -- careful intelligence work and surgical strikes. It doesn't need a war."

Of course, no one would say terrorism is dead, or even that drones have taken out all insurgents who might want to attack the United States. But as General David Petraeus, then Commander of the NATO International Security Assistance Force (ISAF) in Afghanistan, observed in 2010, that will never happen. "We cannot kill or capture our way to victory," he said. General Stanley McChrystal, the architect of U.S. counterinsurgency strategy, called it "insurgent math" -- for every terrorist killed in the war, we create ten new ones.

Now, a former CIA counterterrorism director is saying much the same thing. In May, former CIA station chief Robert Grenier told the Guardian that the drone program "needs to be targeted much more finely. We have been seduced by them and the unintended consequences of our actions are going to outweigh the intended consequences."

He added: "We have gone a long way down the road of creating a situation where we are creating more enemies than we are removing from the battlefield. We are already there with regards to Pakistan and Afghanistan."

Grenier is particularly concerned about Yemen, where aggressive U.S. drone activity could be creating a terrorist safe haven. Striking such a broad swath of Yemeni militants, who reportedly include not just actual fighters but young, military-age men found in their vicinity, could easily backfire, he warned:

Young men, who are typically armed, are in the same area and may hold these militants in a certain form of high regard. If you strike them indiscriminately you are running the risk of creating a terrific amount of popular anger. They have tribes and clans and large families. Now all of a sudden you have a big problem ... I am very concerned about the creation of a larger terrorist safe haven in Yemen.

In fact, it's not even clear that the United States is legally engaged in an armed conflict in Yemen that would justify drone strikes there, given that strikes against U.S. interests by the Yemeni group Al Qaeda in the Arabian Peninsula, or AQAP, have been so sporadic. As Bergen points out, AQAP has only three times attempted to strike the United States. Every time, those attempts have failed.

Three attempted strikes are sporadic acts of criminal terrorist activity; they do not constitute an armed conflict under the laws of war. U.S. drone attacks, on the other hand, could incite one.

The Obama administration continues to justify its use of drone strikes as a lawful part of a war with al Qaeda, the Taliban and associated forces. But as former CIA chief Michael Hayden said in February, "Right now, there isn't a government on the planet that agrees with our legal rationale for these operations, except for Afghanistan and maybe Israel."

That shaky legal rationale could be contagious, especially with drones in the hands of dictators who are not our friends -- not to mention terrorists and other non-state armed groups.

In general, national security analysts are increasingly saying that the United States' fear of terrorism is way overblown. As Bergen points out, lightning strikes are far more deadly to the average American -- "about 30 times more deadly than jihadist terrorism." You don't hear anyone calling for a war on lightning.