The other day, I wondered whether using three C-130s to bring a team of FBI Agents to Benghazi was overkill. And while I was able to get some kind of explanation (1 transport, 1 decoy, 1 to bring the toys), given this report on all the Special Forces C-130s swarming out of Crete…

In the last weeks, an unsual, covert, constant activity of U.S. Special Operations planes has been recorded in the Mediterranean Sea. Quite regularly, taking off from Souda Bay, in Crete, various types of “Special Hercules”, including  MC-130Ps, MC-130Hs, HC-130P, and AC-130U gunships, performed day and night missions in the Libyan airspace whose purpose has yet to be fully unveiled.

As well as very vague reports that the Special Forces were not just protection–but were “helping gather intel”–in Benghazi, I’m not so sure.

Special Forces were always likely to help investigate this killing, but it appears there’s some kind of funky hybrid going on, the latest iteration of partnership between our National Security agencies in the war on terror.

And today, John Brennan headed to Libya to meet with Mohammed Magarief, who has been trying to consolidate national power even while the Prime Minister elect was ousted in a failure to form an acceptable government.

It’s against that background that this WaPo piece offers some key insight.

Before I get into it, I’m using “Obama Doctrine” as David Sanger did in his book. I think it’s a bogus term, but it’s the evolution in policy Sanger described as Obama moved away from CounterIntelligence in Afghanistan, to Counterterrorism, to a belief that partners and locals could carry out the fighting in Libya and elsewhere. The problem with that plan, I’ve always believed, is it offers no better solutions and some worse problems in how you establish the security and institution-building that countries need to have viable economies and legal systems. You’re still faced with the whole failed state problem.

In addition to general Islamist sentiment, Ambassador Steves’ assassination happened in an environment where the government was trying to nurture regime change and nation reformation without the military footprint we had in Afghanistan and Iraq. While Stevens appears to have had real security concerns, he also apparently pushed to have an open presence and to encourage capacity building in Libyans. Arguably, that’s part of what got him killed.

The WaPo catches us up to what kind of dilemmas that presents now as we try to find the best way to respond.

Should it rely on the FBI, treating the assaults on the two U.S. compounds like a regular crime for prosecution in U.S. courts? Can it depend on the dysfunctional Libyan government to take action? Or should it embrace a military option by ordering a drone strike — or sending more prisoners to Guantanamo Bay?

[snip]

All of the options available to the United States could have lasting consequences in Libya, where a transitional government is plagued by infighting and elected leaders have been unable to assume the full reins of power.

Even the basic issue of allowing the FBI to access the crime scene at the U.S. mission in Benghazi for less than a day last Thursday was politically sensitive for Libyans, a Foreign Ministry official said.

“There is very strong public opinion about the Americans coming here and running the investigation,” said Saad el-Shlmani, a ministry spokesman. Some top officials, he added, see the country’s sovereignty at stake.

But deferring to Libya’s fragile justice system — still warped after 42 years of undemocratic rule by Moammar Gaddafi — hardly presents an attractive choice for the administration.

Given how successfully (to the detriment of our civilian legal system) the Administration has been able to introduce limited amounts of intelligence as evidence, while hiding vast swaths of it, I suspect if they take custody of anyone, they will try them in a civilian court.

All that said, I’d like to return to a parallel I made before: to the investigation following the USS Cole bombing in Yemen.

In that case, we had good FBI Agents (including Ali Soufan) on the ground. While they were stymied by State’s desire not to push Ali Abdullah Saleh’s government too far, they were able to develop a sound picture–and admissible evidence–of the perpetrators in the attack. We let Yemen try several of them, which led to their escape from jail.

And yet, after 11 years of coddling Saleh partially in hopes it might make Yemen a move viable country, all while Saleh was playing a double game with us, using al Qaeda to create the need for additional arms, we finally gave up and replaced Saleh; I suspect there’s damning intelligence in a file somewhere showing he had much closer ties to the extremists who attacked us, but that’ll never see the light of day because Americans can’t know that we were basically equipping someone with actionable ties to AQAP.

We tried not to push Saleh too hard in 2000, but that didn’t prevent Saleh from using the extremists in his country to try to prop up his own personal power, without an associated increase in the viability of the Yemeni state.

And meanwhile, 10 years after his capture, 2 waterboardings, 1 mock execution, and other torture later, Abd al Rahim al-Nashiri still has not been tried for his role in the attack. We’ve proven just as incapable as the Yemenis of bringing to justice the men who attacked the USS Cole.

This is part of the reason why Obama has embraced drones, but as the WaPo points out, drone retaliation in Libya could have a particularly toxic effect there.

Some Libyans remember the 1986 airstrikes on Tripoli ordered by President Ronald Reagan in response to suspicions that Libya was responsible for the bombing of a West Berlin disco that killed two U.S. service members and injured 79 others.

“For Libya [drone strikes] would be a disaster. Libya is in a very fragile place,” said Shlmani, the Foreign Ministry spokesman. “Any unilateral action by any country, but especially by the United States, would really be damaging.”

Presumably, John Brennan was cooking up some kind of response today, presumably, one mapped out with the election in mind.

This kind of problem was predictable when the US intervened to overthrow Moammar Qaddafi, so a part of me thinks the Administration got its just deserts for intervening without stronger legal and military justification. But at this point the stakes are so high, I still hope (but doubt, particularly given election pressures) they get the careful balance going forward.