The Three Battles of Wanat Page 14
Petraeus kept his word. Munter never had to challenge a drone strike in a principals’ meeting again during his tenure as ambassador. He left Islamabad in the summer of 2012.
By then, Brennan’s efforts to make the process more judicious had begun to show results. The number of drone strikes in Pakistan and Yemen fell to eighty-eight in 2012, and it has dropped off even more dramatically since.
The decline partly reflects the toll that the drone war has taken on Al Qaeda. “There are fewer Al Qaeda leadership targets to hit,” a senior White House official who is working on the administration’s evolving approach to drone strikes told me. The reduction in strikes is “something that the president directed. We don’t need a top-twenty list. We don’t need to find twenty if there are only ten. We’ve gotten out of the business of maintaining a number as an end in itself, so therefore that number has gone down.”
Any history of how the United States destroyed Osama bin Laden’s organization will feature the drone. Whatever questions it has raised, however uncomfortable it has made us feel, the drone has been an extraordinarily effective weapon for the job. The United States faced a stateless, well-funded, highly organized terrorist operation that was sophisticated enough to carry out unprecedented acts of mass murder. Today, while local Al Qaeda franchises remain a threat throughout the Middle East, the organization that planned and carried out 9/11 has been crushed. When Osama bin Laden himself was killed, Americans danced in the streets.
“Our actions are effective,” President Obama said in a speech on counterterrorism at the National Defense University in May. “Don’t take my word for it. In the intelligence gathered at bin Laden’s compound, we found that he wrote, ‘We could lose the reserves to enemy’s air strikes. We cannot fight air strikes with explosives.’ Other communications from Al Qaeda operatives confirm this as well. Dozens of highly skilled Al Qaeda commanders, trainers, bomb makers, and operatives have been taken off the battlefield. Plots have been disrupted that would have targeted international aviation, U.S. transit systems, European cities, and our troops in Afghanistan. Simply put, these strikes have saved lives.”
So why the steady drumbeat of complaint?
4. Drones Don’t Kill People.
People Kill People.
The most ardent case against drone strikes is that they kill innocents. Brennan has argued that claims of collateral carnage are exaggerated. In June 2011, he famously declared that there had not been “a single collateral death” due to a drone strike in the previous twelve months.
Almost no one believes this. Brennan himself later amended his statement, saying that in the previous twelve months, the United States had found no “credible evidence” that any civilians had been killed in drone strikes outside Afghanistan and Iraq. (I am using the word civilians here to mean “noncombatants.”) A fair interpretation is that drones unfailingly hit their targets, and so long as the U.S. government believes its targets are all legitimate, the collateral damage is zero. But drones are only as accurate as the intelligence that guides them. Even if the machine is perfect, it’s a stretch to assume perfection in those who aim it.
For one thing, our military and intelligence agencies generously define combatant to include any military-age male in the strike zone. And local press accounts from many of the blast sites have reported dead women and children. Some of this may be propaganda, but it’s unlikely that all of it is. No matter how precisely placed, when a five-hundred-pound bomb or a Hellfire missile explodes, there are sometimes going to be unintended victims in the vicinity.
How many? Estimates of body counts range so widely and are so politicized that none of them is completely credible. At one extreme, anti-American propagandists regularly publish estimates that make the drone war sound borderline genocidal. These high numbers help drive the anti-drone narrative, which equates actions of the U.S. government with acts of terror. In two of the most recent Islamist terror attacks as of this writing—the Boston Marathon bombing and the beheading of a soldier in London—the perpetrators justified their killings as payback for the deaths of innocent Muslims. At the other extreme, there is Brennan’s zero. The true numbers are unknowable.
Secrecy is a big part of the problem. The government doesn’t even acknowledge most attacks, much less release details of their aftermath. The Bureau of Investigative Journalism, a left-wing organization based in London, has made a strenuous effort, using news sources, to count bodies after CIA drone strikes. It estimates that from 2004 through the first half of 2013, 371 drone strikes in Pakistan killed between 2,564 and 3,567 people (the range covers the minimum to the maximum credible reported deaths). Of those killed, the group says, somewhere between 411 and 890—somewhere between 12 percent and 35 percent of the total—were civilians. The disparity in these figures is telling. But if we assume the worst case, and take the largest estimates of combatant and civilian fatalities, then one quarter of those killed in drone strikes in Pakistan have been civilians.
Everyone agrees that the amount of collateral damage has dropped steeply over the past two years. The Bureau of Investigative Journalism estimates that civilian deaths from drone strikes in Pakistan fell to 12 percent of total deaths in 2011 and to less than 3 percent in 2012.
No civilian death is acceptable, of course. Each one is tragic. But any assessment of civilian deaths from drone strikes needs to be compared with the potential damage from alternative tactics. Unless we are to forgo the pursuit of Al Qaeda terrorists entirely, U.S. forces must confront them either from the air or on the ground, in some of the remotest places on Earth. As aerial attacks go, drones are far more precise than manned bombers or missiles. That narrows the choice to drone strikes or ground assaults.
Sometimes ground assaults go smoothly. Take the one that killed Osama bin Laden. It was executed by the best-trained, most experienced soldiers in the world. Killed were Osama; his adult son Khalid; his primary protectors, the brothers Abu Ahmed al-Kuwaiti and Abrar al-Kuwaiti; and Abrar’s wife, Bushra. Assuming Bushra qualifies as a civilian, even though she was helping to shelter the world’s most notorious terrorist, civilian deaths in the raid amounted to 20 percent of the casualties. In other words, even a near-perfect special-ops raid produced only a slight improvement over the worst estimates of those counting drone casualties. Many assaults are not that clean.
In fact, ground combat almost always kills more civilians than drone strikes do. Avery Plaw, a political scientist at the University of Massachusetts, estimates that in the Pakistanis’ ground offensives against extremists in their country’s tribal areas, 46 percent of those killed were civilians. Plaw says that proportions of civilian deaths from conventional military conflicts over the past twenty years range from 33 percent to more than 80 percent. “A fair-minded evaluation of the best data we have available suggests that the drone program compares favorably with similar operations and contemporary armed conflict more generally,” he told the New York Times.
When you consider the alternatives—even, and perhaps especially, if you are deeply concerned with sparing civilians—you are led, as Obama was, to the logic of the drone.
But don’t drone strikes violate the prohibition on assassination, Executive Order 12333? That order, signed by Ronald Reagan in 1981, grew out of revelations that the CIA had tried to kill Fidel Castro and other left-leaning political figures in the 1960s and 1970s. It was clearly aimed at halting political assassinations; in fact, the original order, signed in 1976 by Gerald Ford, refers specifically to such acts. Attempting to prevent a dangerous international organization from committing mass murder may stretch the legal definition of armed conflict, but it is not the same as political assassination. Besides, executive orders are not statutes; they can be superseded by subsequent presidents. In the case of President Bush, after the attacks of September 11, Congress specifically authorized the use of lethal operations against Al Qaeda.
When Bush called our effort against Al Qaeda “war,” he effectively established legal pro
tection for targeted killing. The tactic is long-established in the context of war. According to international treaties, soldiers can be killed simply for belonging to an enemy army—whether they are actively engaged in an attack or only preparing for one, whether they are commanders or office clerks. During World War II, the United States discovered and shot down the plane carrying Admiral Isoroku Yamamoto, the commander in chief of the Japanese navy, who had been the architect of the attack on Pearl Harbor. The order to attack the plane was given by President Franklin Roosevelt.
But beyond what international treaties call “armed conflict” is “law enforcement,” and here, there are problems. The 1990 United Nations Congress on the Prevention of Crime and the Treatment of Offenders laid out basic principles for the use of force in law enforcement operations. (The rules, although nonbinding, elaborate on what is meant by Article 6 of the International Covenant on Civil and Political Rights, to which the United States has agreed.) The pertinent passage—written more than a decade before weaponized drones—reads as follows:
Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable to protect life.
Once the “war” on Al Qaeda ends, the justification for targeted killing will become tenuous. Some experts on international law say it will become simply illegal. Indeed, one basis for condemning the drone war has been that the pursuit of Al Qaeda was never a real war in the first place.
Sir Christopher Greenwood, the British judge at the International Court of Justice, has written: “In the language of international law there is no basis for speaking of a war on al-Qaeda or any other terrorist group, for such a group cannot be a belligerent, it is merely a band of criminals, and to treat it as anything else risks distorting the law while giving that group a status which to some implies a degree of legitimacy.” Greenwood rightly observes that America’s declaration of war against Al Qaeda bolstered the group’s status worldwide. But history will not quarrel with Bush’s decision, which was unavoidable, given the national mood. Democracy reflects the will of the people. Two American presidents from different parties and with vastly different ideological outlooks have, with strong congressional support, fully embraced the notion that America is at war. In his speech at the National Defense University in May, Obama reaffirmed this approach. “America’s actions are legal,” he said. “Under domestic law and international law, the United States is at war with Al Qaeda, the Taliban, and their associated forces.” He noted that during his presidency, he has briefed congressional overseers about every drone strike. “Every strike,” he said.
Osama bin Laden himself certainly wasn’t confused about the matter; he held a press conference in Afghanistan in 1998 to declare jihad on the United States. Certainly the scale of Al Qaeda’s attacks went well beyond anything previously defined as criminal. But what are the boundaries of that war? Different critics draw the lines in different places. Mary Ellen O’Connell, a law professor at the University of Notre Dame, is a determined and eloquent critic of drone strikes. She believes that while strikes in well-defined battle spaces like Iraq and Afghanistan are justified, and can limit civilian deaths, strikes in Pakistan, Yemen, Somalia, and other places amount to “extrajudicial killing,” no matter who the targets are. Such killings are outside the boundary of armed conflict, she says, and hence violate international law.
Philip Alston, a former United Nations special rapporteur on extrajudicial, summary, or arbitrary executions, concedes that Al Qaeda’s scope and menace transcend criminality, but nevertheless faults the U.S. drone program for lacking due process and transparency. He told Harper’s magazine:
[International] laws do not prohibit an intelligence agency like the CIA from carrying out targeted killings, provided it complies with the relevant international rules. Those rules require, not surprisingly when it’s a matter of being able to kill someone in a foreign country, that all such killings be legally justified, that we know the justification, and that there are effective mechanisms for investigation, prosecution, and punishment if laws are violated. The CIA’s response to these obligations has been very revealing. On the one hand, its spokespersons have confirmed the total secrecy and thus unaccountability of the program by insisting that they can neither confirm nor deny that it even exists. On the other hand, they have gone to great lengths to issue unattributable assurances, widely quoted in the media, both that there is extensive domestic accountability and that civilian casualties have been minimal. In essence, it’s a “you can trust us” response, from an agency with a less than stellar track record in such matters.
President Obama has taken steps in recent months to address Alston’s concerns. He has begun transferring authority for drone strikes from the CIA to the Pentagon, which will open them up to greater congressional and public scrutiny. He has sharply limited “signature strikes,” those based on patterns of behavior rather than strict knowledge of who is being targeted. (Because most signature strikes have been used to protect American troops in Afghanistan, this category of drone attack is likely to further diminish once those forces are withdrawn.) In his May speech, he came close to embracing “the full Harold,” publicly outlining in general terms the targeting constraints drafted by Koh. He also made clear that the war on Al Qaeda will eventually end—though he stopped short of saying when. American combat troops will be gone from Afghanistan by the end of next year, but the war effort against “core Al Qaeda” will almost certainly continue at least until Ayman al-Zawahiri, the fugitive Egyptian doctor who now presides over the remnants of the organization, is captured or killed.
Then what?
“Outside of the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal,” Alston wrote in 2010. Mary Ellen O’Connell agrees. “Outside of a combat zone or a battlefield, the use of military force is not lawful,” she told me.
Yet this is where we seem to be headed. Obama has run his last presidential campaign, and one senses that he might cherish a legacy of ending three wars on his watch.
“Our commitment to constitutional principles has weathered every war, and every war has come to an end,” he said in his May speech. “We must define the nature and scope of this struggle, or else it will define us. We have to be mindful of James Madison’s warning that ‘no nation could preserve its freedom in the midst of continual warfare.’”
The changes outlined by the president do not mean we will suddenly stop going after Al Qaeda. If the war on terror is declared over, and the 2001 Authorization for Use of Military Force (AUMF) is withdrawn, then some other legal justification for targeting Al Qaeda terrorists with drones would be necessary, and would probably be sought.
“We believe we have a domestic and international legal basis for our current efforts,” Ben Rhodes, who is Obama’s deputy national security adviser for strategic communications, told me. “If you project into the future, there are different scenarios, you know, so they are kind of hypothetical, but one is that you might have a narrower AUMF that is a more targeted piece of legislation. A hypothetical: the Taliban is part of the AUMF now, but we could find ourselves not in hostilities with the Taliban after 2014.” In that case, the military authority to attack Taliban targets, which account for many drone strikes and most signature strikes, would be gone. Another scenario Rhodes sketched out was one in which a local terrorist group “rose to the level where we thought we needed to take direct action. You might have to go back to Congress to get a separate authorization. If we need to get authority against a new terrorist group that is emerging somewhere else in the world, w
e should go back to Congress and get that authorization.”
You can’t know in advance “the circumstances of taking direct action,” Rhodes said. “You may be acting to prevent an imminent attack on the United States or you may be acting in response to an attack, each of which carries its own legal basis. But you have to be accountable for whatever direct action you are taking,” rather than relying on some blanket authority to strike whomever and whenever the president chooses. “You would have to specifically define, domestically and internationally, what the basis for your action is in each instance—and by each instance, I don’t mean every strike, per se, but rather the terrorist group or the country where you are acting.”
Seeking such authorization would help draw the debate over continued drone strikes out of the shadows. Paradoxically, as the war on terror winds down, and as the number of drone strikes falls, the controversy over them may rise.
5. Come Out with Your Hands Up!
Once the pursuit of Al Qaeda is defined as “law enforcement,” ground assaults may be the only acceptable tactic under international law. A criminal must be given the opportunity to surrender, and if he refuses, efforts must be made to arrest him. Mary Ellen O’Connell believes the raid at Abbottabad was an example of how things should work.
“It came as close to what we are permitted to do under international law as you can get,” she said. “John Brennan came out right after the killing and said the SEALs were under orders to attempt to capture bin Laden, and if he resisted or if their own lives were endangered, then they could use the force that was necessary. They did not use a drone. They did not drop a bomb. They did not fire a missile.”
Force in such operations is justified only if the suspect resists arrest—and even then, his escape is preferable to harming innocent bystanders. These are the rules that govern police, as opposed to warriors. Yet the enemies we face will not change if the war on terror ends. The worst of them—the ones we most need to stop—are determined suicidal killers and hardened fighters. Since there is no such thing as global police, any force employed would probably still come from, in most cases, American special-ops units. They are very good at what they do—but under law enforcement rules, a lot more people, both soldiers and civilians, are likely to be killed.