For PBS: Why did the U.S. capture Sulaiman Abu Ghaith?

Last Friday, the U.S. government announced it had captured Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law and al Qaeda’s one-time chief propagandist, in Jordan.

His capture appeared like a major coup. When the U.S. invaded  Taliban-controlled Afghanistan in 2001, Abu Ghaith told Aljazeera, “the planes will not stop,” referring to more 9/11-style attacks. In reality, however, his capture and arraignment in New York only raises more questions.

Because the White House does not openly discuss the affects of its lethal counter terrorism operations, we don’t how many have died from U.S. operations from the likes of drone strikes or special operations forces raids. We can reasonably assume, from patchy media reports over the years, that the Obama administration has killed hundreds, and possibly thousands of al Qaeda figures much less senior than Abu Ghaith. So Why was he captured and not killed?

The answer is simple: location. U.S. agents caught Abu Ghaith in Jordan but first located him in Turkey, after he left his comfortable house arrest in Iran. According to CBS News, Turkey would not allow extradition because the U.S. might then impose the death penalty. So through mutual agreement Abu Ghaith was flown to Jordan, where U.S. agents put him on a Gulfstream 5 and brought him back to the U.S.

In other places where al Qaeda figures live and travel, such as Yemen or Pakistan, the U.S. does not have the option to participate in capture operations. Journalists in Yemen have documented that even in easy-seeming situations, the U.S. government simply cannot capture militants it has targeted. Instead, it is encouraged by a raft of backroom agreements to kill, rather than to capture.

Pakistan is much the same. In the Federally Administered Tribal Areas, where drone strikes occur, there are no options to capture militants. The U.S. is not permitted to send in its own agents and the Pakistani government chooses not to. Drones, whether flown by the U.S. or by Pakistan, are therefore left as the only national method for responding to terrorism.

Moreover, capturing militants is still incredibly difficult. The Bush administration shut down the practice of extraordinary rendition (essentially a global capture industry) in the face of massive global outcry. Yet the Obama administration has found it politically difficult to re-orient its counter terrorism policies back to seizing militants.

Even Abu Ghaith’s capture and trial in New York has sparked some controversy. Senate Minority Leader Mitch McConnell criticized the decision to try him in a civilian, rather than in military court. “He is an enemy combatant and should be held in military custody,” Senator McConnell said.

Two other terror suspects have been brought to courts in the U.S. recently: Ahmed Abdulkadir Warsame, a Somali militant and Mohamed Ibrahim Ahmed, an Eritrean militant. Republicans have opposed their civilian trials as well.

In the face of such persistent opposition, killing is often easier, cheaper, and has fewer domestic political consequences than the laborious process of capturing senior terrorist figures. Drones also tend to poll well among voters. Rand Paul’s recent filibuster notwithstanding, there is not a lot of political or public pressure reign in or stop the use of drones.

The perverse incentives that compel President Obama to kill rather than capture are rooted in the incoherent make up of the terror war. In a way, Mr. McConnell is correct; in an armed conflict, when you capture an enemy you put him in military custody. Yet, when looking at the circumstances of Abu Ghaith’s capture, the optics of military custody are negative.

Maybe viewing counter terrorism as an armed conflict (a constant refrain seen in laws, legal briefings, and political rhetoric) is a mistaken framework for the challenge of terrorism. Changing that framework, however, won’t be easy. In 2004, when he suggested viewing terrorism as a nuisance to be minimized through law enforcement rather than a war to be won militarily, the Republicans hammered then-Senator John Kerry for being weak on national security.

There is still opposition to changing our legal framework and mindset from “war” to “law enforcement.”  Mr. Kerry was right; terrorism really is a problem to be managed, rather than something discrete to triumph over. By switching the gears of State away from a militarized wartime perspective (wherein even the CIA has been turned into another military service) new legal and operational options become available.

On a fundamental level, moving away from our war footing will create more political space to think creatively about the challenge of terrorism than simply “send in the drones.” It would allow for a more explicit legal framework, operating out of the shadow war and in the relative openness of law enforcement. Most importantly, a new perspective would go a long way toward making the struggle against terrorism more moral, ethical, and legitimate.

This post originally appeared at PBS.