A classified order signed in 2004 by Secretary of Defense Rumsfeld and President Bush that gave the U.S. military broad authority to conduct covert raids on Al Qaeda and other terror organization, was an important mandate which came about in the aftermath of September 11. The rational for the order was to shorten the time between actionable intelligence specifying the whereabouts of a known terrorist and then a military strike. This ruling was specifically written for non-combat zones (i.e. not Iraq or Afghanistan), because in such areas military action requires high-level approval. (In a war zone strikes happen with frequency and do not require the approval of Washington bureaucrats.) The motivation for such a document was the recognition that locational intelligence on high-value targets was both difficult to acquire and usually time sensitive. Any proposed action would typically need to be undertaken in a matter of hours not days; to streamline the approval process was a pressing matter of national security. Depending on a target country's political situation, sensitivity to illegal US cross-boarder operations, and US fear of condemnation and/or retaliation, the signing off on a certain mission required varying levels of executive approval. For example, missions in Somalia required only Donald Rumsfeld's approval whereas missions in Pakistan or Syria required presidential approval.
Although one might find such incursion disagreeable or despicable, in the fight against a highly irregular enemy, there are times when realism dictates the suspension of some of our values and/or laws and the streamlining of procedures. This order, where we suspended our respect for the sovereignty of other nations, is an example of this.
In contrast to the 2004 order, the use of torture, extraordinary rendition, and trial by military tribunal (although all having a place in warfare) have been greatly abused in the War on Terror. The main reason for such abuse is the lack of incentive against their use. For torture the perpetrators (either the individual or the US) have little fear of being tortured or facing disciplinary action; similarly, for extraordinary rendition and trial by military tribunal the same holds true. To counter the use of these extrajudicial tools, the stakes of the game need to change: either international institutions or countries need to hold the United States more accountable or the US needs to regulate their use more. On our end of the equation we can strengthen the regulations governing their use. In doing so we will recognize that extenuating circumstances exist while simultaneously reducing instances of abuse.
These regulations must be quite stringent if we consider the typical strong incentive against cross-border operations:
Pakistan is an integral player in the War on Terror as Al Qaeda militants move into both Waziristan and the greater Federally Administered Tribal Areas. If we lose the cooperation of Islamabad, Al Qaeda can then operate with much greater impunity in the mountainous border region.
The close ties and mutual understanding between Tehran and Damascus means that not only must US leadership show extreme care when dealing with Iran but also when dealing with Iran's closest allies.
The US has little need to meddle in the affairs of Somalia at the moment, unless terrorists are located there. If that is the case a strike will be made. With Somalia largely a failed state with few means of retaliation against the US, Secretary level approval is all that is required.
It is not only fear of reprisal which legitimizes use of this order, but there is also greater moral authority supporting its utilization in comparison to torture and military tribunals. When the location of a wanted terrorist known, it makes sense that an operation of some sort would occur to apprehend the person. Once in custody (if not killed), the use of torture is questionable for two reasons though: first, the efficacy of torture is not proven, and secondly there is little oversight or other incentive against its use. Following any such torturing, imprisonment without charges and/or trial by secret military tribunal is also questionable for such suspension of civil rights is hardly necessary for all or even most detainees. If there is not case against a prisoner, that person should be released. For cases where national security dictates secret tribunals rather then public trial, there needs to be significant oversight ensuring that this privilege is not abused. This line between national security and personal rights is a fine one; empirically these diametrically opposed considerations are being balanced well if there are reports of both successes and failures. For judicial proceedings, we should want and expect that a few public ones will later be deemed to have been damaging to national security. If there are only success stories, like we have seen over the past seven years, than the extrajudicial procedure are being overused. This way of measuring success has indicated prudent use of Bush's 2004 legislation; there have been numerous successes reported and few failures (see NYTimes article). Had the strikes always been fruitful this would indicate that some opportunities had been missed and had collateral damage occurred often then we would know that the "attack" threshold had been set too low.