To Target or Not to Target: Why 'Tis Nobler to Thwart the Afghan Narcotics Trade with Nonlethal Means

• Author: Edward C. Linneweber
• Position: Judge Advocate, U.S. Army
• Pages: 155-202

2011] AFGHAN NARCOTICS TRADE 155

TO TARGET, OR NOT TO TARGET: WHY ’TIS NOBLER TO

THWART THE AFGHAN NARCOTICS TRADE WITH

NONLETHAL MEANS

MAJOR EDWARD C. LINNEWEBER

Sherman's advance toward Savanna [sic] in the

American war between the north and south was not in

search of combat, it was to burn and plunder all along

the way. It was a measure used to destroy the economy

in the southern army's rear area, to make the southern

populace and the southern army lose the ability to resist,

thus accomplishing the north's war objective. This is an

example of the successful use of unlimited measures to

achieve a limited objective.1

I. Introduction

The Taliban extracts hundreds of millions of dollars from the Afghan

opium trade, fueling that country’s insurgency.2 Recognizing a threat to

Afghanistan’s stability, the United States has focused on reducing the

flow of drug profits to insurgent groups.3 Some military leaders warn that

“the Taliban cannot be defeated and good government cannot be

established without cutting off the money generated by Afghanistan’s

 Judge Advocate, U.S. Army. Presently assigned as Plans Officer in the Office of the

Judge Advocate General’s Personnel, Plans, and Training Office. LL.M., 2010, Judge

Advocate Officer Graduate Course, The Judge Advocate General’s Legal Center and

School, Charlottesville, Virginia; J.D., 2005, University of Virginia School of Law; B.S.,

1998, U.S. Military Academy. Previous assignments include Brigade Judge Advocate, 3d

Heavy Brigade Combat Team, 1st Cavalry Division, Fort Hood, Texas, and Mosul, Iraq,

2008–2009; Chief of Military Justice, 1st Cavalry Division, Fort Hood, Texas, 2008;

Trial Counsel, 2d Brigade Combat Team, 1st Cavalry Division, Fort Hood, Texas, and

Baghdad, Iraq, 2007–2008; Administrative and Operation Law Attorney, 1st Cavalry

Division, Fort Hood, Texas, 2006–2007, Platoon Leader, Executive Officer, and

Adjutant, 2nd Battalion, 504th Parachute Infantry Regiment, 82d Airborne Division, Fort

Bragg, North Carolina, 1999–22001. Member of the bar of Indiana. This article was

submitted in partial completion of the Master of Laws requirements of the 58th Judge

Advocate Officer Graduate Course.

1 QIAO LIANG & WANG XIANGSUI, UNRESTRICTED WARFARE, CHINA’S MASTER PLAN TO

DESTROY AMERICA 181 (Foreign Broad. Info. Serv. trans., Pan Am. Publ’g 2002) (1999).

2 STAFF OF S. COMM. ON FOREIGN RELATIONS, 111TH CONG., AFGHANISTAN’S NARCO

WAR: BREAKING THE LINK BETWEEN DRUG TRAFFICKERS AND INSURGENTS 1 (Comm.

Print 2009) [hereinafter STAFF OF S. COMM. ON FOREIGN RELATIONS].

3 Id.

156 MILITARY LAW REVIEW [Vol. 207

opium industry, which supplies more than 90 percent of the world’s

heroin and generates an estimated $3 billion a year in profits.”4

This flow of billions of dollars thoroughly corrupts Afghan society.

For example, police chiefs collect hundreds of thousands of dollars in

narcotics bribes, permitting them to pay the $100,000 kickbacks required

to obtain their $150-a-month jobs.5 Allegedly, this corruption even goes

to the highest levels of the Afghan government and includes President

Karzai’s brother, Ahmed Wali Karzai.6 This widespread drug-related

corruption “undermines legitimate political and economic development

by promoting a culture of corruption and squeezing out licit agricultural

growth.”7 Furthermore, the insurgents and drug traffickers developed a

symbiotic relationship: “Drug traffickers benefit from terrorists’ military

skills, weapons supply, and access to clandestine organizations.

Terrorists gain a source of revenue and expertise in illicit transfer and

laundering of money.”8

Recognizing a significant threat posed by the narcotics industry, the

U.S. military placed fifty drug traffickers on a target list for kill or

capture.9 In the Senate Foreign Relations Committee Report on the

matter, a U.S. officer reports that the commanders can “put drug

traffickers with proven links to the insurgency on a kill list . . . . [that]

places no restriction on the use of force with these selected targets, which

means they can be killed or captured.”10

The United States apparently does not target all drug traffickers, just

ones supporting the Taliban and the insurgency. The traffickers on the

kill-or-capture list are called “nexus targets” and are ones who provide

money to the Taliban militants.11 The U.S. military also strikes the drugs

4 Id.

5 Id. at 11.

6 Id.

7 Id. at 13 (quoting e-mail from Ambassador Karl Eikenberry).

8 Elizabeth Peterson, Note: Two Sides of the Same Coin: The Link Between Illicit Opium

Production and Security in Afghanistan, 25 WASH. U. J.L. & POL’Y 215, 229 (2007).

9 STAFF OF S. COMM. ON FOREIGN RELATIONS, 111TH CONG., supra note 2, at 1; James

Risen, U.S. to Hunt Down Afghan Drug Lords Tied to Taliban, N.Y. TIMES, Aug. 10,

2009, at A1.

10 STAFF OF S. COMM. ON FOREIGN RELATIONS, 111TH CONG., supra note 2, at 15. These

targets “can be captured or killed at any time.” Risen, supra note 9, at A1.

11 Jason Straziuso, 50 Drug Barons on US Target List in Afghanistan, ASSOCIATED PRESS,

Aug. 10, 2009, http://abcnews.go.com/International/wireStory?id=8291554. Apparently

early plans were to lethally target drug traffickers without links to the Taliban, but this

2011] AFGHAN NARCOTICS TRADE 157

themselves; in one instance, the United States destroyed 300 tons of

poppy seeds by dropping a series of 1000 pound bombs.12

United States officials believe this targeting furthers their mission in

Afghanistan, but that does not necessarily make it legal or right. This

article looks through several lenses to analyze the U.S. military’s

targeting of two distinct sets: the people (the drug traffickers) and the

things (the opium plants and processing laboratories). This article uses

three lenses: the lens of the widely accepted Additional Protocols to the

Geneva Conventions; the lens of the International Committee of the Red

Cross (ICRC); and the lens of the United States. The analysis will show

that this targeting fails when observed through the lenses of the

Additional Protocols and the ICRC and that this targeting represents a

troubling policy decision when observed through the U.S. lens.

After analyzing the targeting through these lenses, this article

discusses several second-order implications, including contradictions

within U.S. counterinsurgency doctrine, reciprocity in targeting of

economic objectives, and risks to humanity from expanding the

definition of military objective. Ultimately, this article concludes that

problems exist with claiming narcotics traffickers are taking a direct part

in hostilities; that difficulties exist with claiming narcotics related items

are valid military objectives; and that, even if no legal problems existed,

targeting of the opium trade may be unwise policy.

II. Narcotics Trafficker: A Criminal, but also a Combatant?

The Afghan opium industry in 2008 produced an export commodity

worth $3.4 billion and employed approximately ten percent of the

Afghan population.13 Approximately eighty percent of this income,

plan ran into stiff resistance among the NATO allies. Tom Coghlan, NATO Split Over

Order to Strike Afghanistan Drug Smugglers, THE TIMES (LONDON), Jan. 30, 2009. The

NATO disagreement apparently resulted in limitations on the initial plan to ensure

agreement. Judy Dempsey, NATO Chief Presses Afghan Drug Fight, N.Y. TIMES, Feb.12,

2009, http://www.nytimes.com/2009/02/12/world/asia/12nato.html.

12 STAFF OF S. COMM. ON FOREIGN RELATIONS, 111TH CONG., supra note 2, at 12; CNN,

U.S. Bombs Poppy Crop to Cut Taliban Drug Ties, July 21, 2009, http://www.cnn.com/

http://www.cnn.com/2009/WORLD/asiapcf/07/21/afghanistan.poppy.strike/index.html#c

nnSTCText.

13 U.N. OFFICE ON DRUG & CRIME, Afghanistan: Opium Survey 2008, at 2–5 (Nov. 2008),

available at http://www.unodc.org/documents/afghanistan//Afghanistan_Opium_Survey_