To kill or not to kill? How does the Pentagon decide that they have the legal right to assassinate an alleged insurgent or terrorist in Afghanistan or Iraq?
These questions gained a new urgency this week, as the Wall Street Journal reported Tuesday that the Central Intelligence Agency is about to launch a secret new campaign to "carry out aggressive drone strikes" in Yemen modelled on the alleged existing assassination programme in Pakistan. The WSJ report noted that "the CIA operates under different legal restrictions, giving the administration a freer hand to carry out strikes."
The answer involves two different sets of lawyers who are called upon when the target is to be taken out with a missile fired from an aircraft or a remotely piloted drone, depending on whether the theatre is Afghanistan or Pakistan, Iraq or Yemen, and whether the Pentagon or the CIA is in command. Potential targets in Afghanistan and Iraq are tracked by Pentagon "joint forces" teams at the al-Udeid air base in Qatar: working inside a giant converted hanger known as a combined air and space operations centre, they view giant screens displaying maps and video from drone aircraft. There are other combined air and space operations centres scattered around the world, such as one in Ramstein, Germany, where Major General Margaret Woodward was in charge of Operation Odyssey Dawn, the US bombing of Libya.
As many as four military lawyers are available 24 hours a day for commanders to consult before they give the order to shoot anyone. These lawyers are called judge advocate generals and they must undergo special training in the Geneva conventions in Charlottesville, Virginia, before they deploy. The military lawyers are required to make sure that an operation – including the kind of weapons to be used and the risk of civilian casualties – meets with three overarching sets of rules: the laws of armed conflict, official (but top secret) rules of engagement for a given conflict and a set of specific instructions (known as "Spins") drawn up by the commanding officers. Until the lawyers sign off on all three, the senior offensive duty officer cannot request permission from the joint force air component commander to fire weapons such as a Hellfire missile from a drone or use close air support from manned aircraft like the A-10 Warthog.
A checklist for commanders and for lawyers alike is provided in a "standard operating procedures" manual on how to conduct a taregted killing – whether deliberate (pre-planned) or dynamic (based on events of the day). Colonel James Bitzes, the US Air Force senior legal adviser at the al-Udeid air base in 2010, recently showed a group of political analysts and journalists a video of an actual strike (an edited version is shown above) at a recent event organised by Arizona State University.
His boss, Charles Blanchard, the US Air Force general counsel, says that the sophisticated computer and video systems at al-Udeid allow the military to better obey the laws of war: "Technology has actually raised the bar on military leaders as to when they can have strikes. We've gotten quite good at this. When we have planned attacks, we rarely have civilian casualties," the Harvard-trained lawyer told the audience at the event.
But for all the sophisticated legal advice from Washington and the multiple drone feeds available to the commanders in Qatar, the US military makes glaring mistakes. Local communities almost always allege that civilians have been killed – yet, few cases are properly investigated. Last month, a new report conclusively documented how military intelligence and lawyers had planned a "targeted killing" in Takhar, Afghanistan that assassinated the wrong man.
On 2 September 2010, the International Security Assistance Force (Isaf) in Afghanistan sent out a press release:
"Coalition forces conducted a precision air strike targeting an Islamic Movement of Uzbekistan senior member assessed to be the deputy shadow governor for Takhar province this morning. US Intelligence tracked the insurgents traveling in a sedan on a series of remote roads in Rustaq district. After careful planning to ensure no civilians were present, coalition aircraft conducted a precision air strike on one sedan and later followed with direct fire from an aerial platform."
The man US special forces intended to kill was Muhammad Amin, the then Taliban deputy governor of Takhar province. But in fact, they killed someone named Zabet Amanullah, who was out campaigning in parliamentary elections – along with nine of his fellow election workers.
It so happened that Kate Clark, a former BBC correspondent in Kabul who now works for the Afghanistan Analysts Network, had met with Zabet Amanullah in 2008. He had been badly tortured by the Pakistan intelligence service because he was a former Taliban commander who was not fighting. Clark decided to investigate. She interviewed survivors, witnesses, police, senior Afghan officials and was also given lengthy briefings by senior officers from the US special forces unit that carried out the attack. Her report, published in May is exhaustive:
"The special forces unit believed that Muhammad Amin, a Taliban deputy governor, was using the name 'Zabet Amanullah' as an alias. It has insisted that the technical evidence shows irrefutably that there was only [one] person. Yet, Zabet Amanullah was not an alias; it was the name of an actual person. When pressed about the existence – and death – of an actual Zabet Amanullah, one officer said, 'We were not tracking the names, we were targeting the telephones.'"
Zabet Amanullah was a famous person locally, known personally to many provincial officials, but US intelligence had not carried out basic background checks on the name. "[I]n the complex political landscape of Afghanistan, it is not enough to track phones," writes Clark. "It is certainly not enough to base a targeted killing on." The error could have been avoided, she points out in the report, if US military intelligence officers had just been "watching election coverage on television", instead of living in its "parallel world" remote from "normal, everyday world of Afghan politics".
Further evidence that the Pentagon had targeted the wrong man was provided by Michael Semple, a Taliban expert at Harvard University, who interviewed Muhammad Amin and confirmed that he was alive and well and living in Pakistan in March 2011. "Anyone who knows the personalities of the jihad and the Emirate in Takhar will know me and that I am alive," Amin told Semple.
The US Air Force lawyers are not in charge of targeted killings in Pakistan. That is masterminded out of an office building in northern Virginia, where as many as ten CIA lawyers are available to look over five-page requests to kill someone, according to John Rizzo, the former top lawyer at the spy agency. Rizzo told a Newsweek reporter that he was asked to review one request a month, on average, requesting permission for a "death warrant". The cables always concluded with the following words: "Therefore we request approval for targeting for lethal operation." A space was provided for his signature along with the word "concurred". Rizzo noted that he did not approve all of them, but neither did he consult with the president on specific strikes.
I asked Afsheen John Radsan, a former CIA assistant general counsel from 2002 to 2004, another Harvard law graduate, how the training and the experience of the CIA lawyers compared with the US Air Force lawyers. Radsan told me that he was not given any training on the laws of war when he worked at the CIA. "On 9/11, there were far more lawyers who knew the details of the Geneva conventions at the defence department (and at the state department) than at CIA," Radsan wrote in an email to me. "Before the drone era, [the Pentagon] had far more experience in targeting and killing."
After Radsan left the CIA, he says he "learned a great deal" on the subject from current and former instructors at the Judge Advocate General school in Charlottesville. He recommended it to Rizzo's replacement, Stephen Preston, the current top lawyer at the CIA: "Any CIA lawyers who are advising on the alleged drone programme should receive JAG-style training," he wrote to me. (It goes almost without saying that Preston also got his law degree at Harvard.)
To date, the CIA has focused its efforts on Pakistan because, until now, "the CIA ha[d] neither the drones nor the personnel to take the lead in the [Yemen] operation," according to the Associated Press. "US special operations forces based just outside Yemen are taking aim almost daily at a greater array of targets" – which, presumably, suggests operations from the al-Udeid base in Qatar. But, in any case, this is about to change with the rushed construction of a new CIA base from which to launch drones inside Yemen, according to the news agency.
Should we be worried that the Obama administration has apparently signed off on a third new war (after Pakistan and Libya), when the better-trained lawyers at the Pentagon are already authorising killings of the wrong people in Afghanistan, where the US has had boots on the ground for almost a decade?
Gabor Rona, the international legal director of Human Rights First, a US watchdog group, says we should. According to him (via email to me), there are three problems with the way the US government conducts "targeted killing".
"First, the US uses an overly-broad concept, rejected by many of its allies, of when and where the laws of war apply. Second, even where the laws of war do apply, the US won't say what are their criteria for targeting, but indications are that they are broader than what the laws of war would permit. Third is the risk of bad intelligence – that the target was not who they thought it was, or did not do what they thought he did."
When the high-tech video feeds in Qatar and Virginia produce less intelligence than the TV news in a small town in Afghanistan and the Harvard-trained lawyers at the CIA and the Pentagon cannot be relied upon to comply with the Geneva conventions, it is time, at the very least, to bring some accountability and transparency to Obama's secret war of targeted drone attacks and make these operations subject to congressional oversight.
• Editor's note: a response from the US Air Force on several points raised in this article is expected but has been delayed; the article will be updated as appropriate when the force's comments have been received
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