In April of this year, President Obama approved the CIA’s request to begin launching targeted assassinations in Yemen through drone strikes even when the identities of those being targeted is not know. The US government calls these “signature strikes,” and they are being deployed constantly in both Yemen and Pakistan. Drone operators thousands of miles away view people on the ground through a grainy video feed and identify “suspicious behavior.” And on that basis, the people are bombed.
But a new academic paper describes signature strikes as “legally suspect.” Kevin Jon Heller, professor at Melbourne Law School, writes in a forthcoming piece for the Journal of International Criminal Justice that the Obama administration appears to be engaging in the unlawful use of force in many of its signature strikes.
The drone war has been receiving renewed focus among academics skeptical of its legality and adherence to human rights. A study last month from the Stanford and NYU schools of law found that the drone program is “terrorizing” the civilian population of Pakistan and that it is having a “counterproductive” impact, effectively creating more enemies than it eliminates. Another study this month from Columbia Law School’s Human Rights Institute found the number of Pakistani civilians killed in drone strikes are “significantly and consistently underestimated” by tracking organizations which are trying to take the place of government estimates on casualties, which the Obama administration won’t comment on because the drone war is technically secret.
Heller deals primarily with the question of legality under international law. Broadly speaking, signature strikes are suspect because international humanitarian law obligates “[t]hose who plan or decide upon an attack” to “do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects.” Article 50(1) of the Additional Protols demanding that “if there is still ‘doubt’ that an individual is a legitimate target after taking all feasible precautions, ‘that person shall be considered to be a civilian.’
The many anecdotal instances of massive civilian casualties in any number of drone strikes throughout the Obama presidency suggest that these legally mandated precautions were not adhered to; if no ‘doubt’ remained, we would not see so many incidents like this. But Heller tackles specific categories of signature strikes and shows that the criteria for bombing people in these drone strikes violates the law.
Citing a recent New York Times report, among others, that described the administration’s method of counting “all military-age males in a strike zone as combatants…unless there is explicit intelligence posthumously proving them innocent.”
That status, however, cannot simply be inferred from the fact that an individual is of military age and is present in an area that the CIA chooses to attack. As the ICRC has pointed out, membership in an organized armed group requires actual and continuous participation in hostilities; it ‘cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse.
The ‘military-age male’ signature, it is worth noting, is an unfortunate remnant of the Vietnam war, during which the US government routinely presumed that any military-age male in a combat zone was a Viet Cong fighter. Colin Powell openly acknowledged that practice in his autobiography:
“I recall a phrase we used in the field, MAM, for military-age male. If a helo [helicopter] spotted a peasant in black pajamas who looked remotely suspicious, a possible MAM, the pilot would circle and fire in front of him. If he moved, his movement was judged evidence of hostile intent, and the next burst was not in front but at him. Brutal? Maybe so.”
Powell’s description is echoed – more colorfully – by Lt. William Calley, the archietct of the infamous 1968 massacre at My Lai:
“[I]f those people weren’t all VC then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander… his star said its a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t yougn enough or old enough to do anything but sympathize.”
The ‘military-age male’ signature is not simply brutal, as Powell acknowledges. It is also unlawful.
Comparing the Obama administration’s criteria for signature drone strikes to one of the most notorious war crimes in modern memory is an extraordinary statement that the media and the political class are simply ignoring.
Another criteria Heller focuses on is “consorting with known militants.” The US has been targeting and killing people they determine through their drone cameras are “consorting” with “militant,” and going on to stand by these killings as morally and legally legitimate. Heller says this doesn’t meet the requirements for participating in hostilities and therefore targeting on this basis is criminal.
At most, then, consorting with known militants can be considered sympathizing or collaborating with and organized armed group. Neither activity however makes an individual a lawful target. With regard to sympathizing, the UN Sub-Commission on Human Rights adopted a resolution in 1985 that specifically condemned the US-backed El Salvadoran government’s practice of killing peasants it believed were sympathetic to the FMLN. According to the Sub-Commission, “as long as the so-called ‘masses’ do not participate directly in combat, although they may sympathize, accompany, supply food and live in zones under the control of the insurgents, they preserve their civilian character, and therefore they must not be subjected to military attacks.” With regard to collaboration, the Special Court for Sierra Leone specifically held in Fofana and Kondewa that “persons accused of ‘collaborating’ with the government or armed forces would only become legitimate military targets if they were taking direct part in the hostilities. Indirectly supporting or failing to resist an attacking force is insufficient to constitute such participation.
At the very least, the Obama administration deserves to be investigated for their conduct in the drone war. Heller doesn’t say all drone strikes are illegal, and he concludes that even the unlawful strikes “would be difficult to prosecute as war crimes,” because it’s difficult to prove intent to kill civilians on the part of the Obama administration. Several high-level officials at the United Nations, however, have speculated that war crimes have been committed in instances where the Obama administration targeted rescuers in follow-up strikes or funeral attendees – both of which have been alleged.
But even putting war crimes prosecution aside, crimes have clearly been committed. The Obama administration, however, is the most powerful cabinet in the world. And the powerful don’t typically submit to the law. Aggressive prosecutions and harsh jail sentences need to be reserved for pot-smokers and convenient store thieves. The powerful can’t be bothered with thousands of dead civilians and international laws governing the use of force.
Nobody thinks the Afghan government puts Afghanistan on a path to independence, stability, and good governance. Well, almost nobody.
According to the latest polls, an astonishing 40 percent of Americans think the war in Afghanistan is going “very well” or “fairly well.” And while 60 percent say America “should not be involved” in Afghanistan, 31 percent think we’re doing the right thing.
Most of the political class, and nearly all of the Washington, DC wonkers, however, believe what should be obvious to well over 60 percent of Americans: the war is a failure and the Afghan government and its security forces warrant zero confidence by every observable metric. A report by the International Crisis Group earlier this month found that the Afghan government “could collapse” after the 2014 transition and the Associated Press reported last week that “a decisive end seems nowhere in sight,” while noting the enduring Taliban insurgency, the failure of a negotiated settlement, the weakness of the US-backed Kabul government, and Washington’s plans to keep tens of thousands of troops in Afghanistan well beyond the much-cited “withdrawal date” of 2014. “We are probably headed for stalemate in 2014,” says Stephen Biddle, a George Washington University professor who has advised US commanders in Afghanistan and Iraq.
So why the lingering support by sizable minorities?
In a word: propaganda. At Foreign Policy, Frances Z. Brown of the Council on Foreign Relations thinks the naive faith in the Afghan government, the Obama administration’s key to “success” in Afghanistan, is because few people have a systematic understanding of the reality on the ground due to (1) a reliance on liars in the US government and military, and (2) their distraction by anecdotal soundbites, and the inability or unwillingness to think beyond that. Brown writes:
In an era of budget constraints, military and civilian organizations in Afghanistan are pressured to demonstrate results quickly-and so they direct the unremitting stream of high-level visitors and influential thinkers to Afghanistan’s most impressive cases. As a second explanation, our sound-bite culture places a premium on personal testimonials, and so peppering public communication with colorful narratives rather than tedious data is often viewed as more authentic or engaging.
This reminds me of Michael Hastings blockbuster reporting in Rolling Stone last year, when he revealed that “the US Army illegally ordered a team of soldiers specializing in ‘psychological operations’ to manipulate visiting American senators into providing more troops and funding for the war.”
Lieutenant Colonel Daniel L. Davis, who bravely came out publicly last year to denounce the US military leadership as a bunch of propagandists, said that “Our current military leadership is so distorting the information it releases that the deterioration of the situation and the failing nature of our efforts is shielded from the American public (and Congress), and replaced instead with explicit statements that all is going according to plan.” He said his deployments to Afghanistan revealed to him a reality that “bore no resemblance to rosy official statements by U.S. military leaders about conditions on the ground.”
And as for the second part of Brown’s explanation, I turn it over to Noam Chomsky:
The propaganda effort on Afghanistan has been going on for more than a decade now, and the fact that 53 percent of Americans think its going “not too well” or “not at all well” means perhaps the batteries are running out. But it still manages to keep sizable minorities from opposing it and to keep virtually the entire American public passive, docile, and disinterested.
The Supreme Court on Monday heard oral arguments in Clapper v. Amnesty International, a case which will determine whether or not the government’s warrantless surveillance of American citizens can be challenged in court, even when the specifics of the program are secret.
The Foreign Intelligence Surveillance Act (FISA) was enacted by Congress in the 1960s and 70s and regulates the government’s conduct of intelligence surveillance inside the United States. In 2001 – following the 9/11 attacks – President Bush illegally authorized the National Security Agency to launch a warrantless wiretapping program, in breach of FISA “and in 2008 Congress ratified and expanded that program, giving the NSA almost unchecked power to monitor Americans’ international phone calls and emails,” the ACLU explains.
Court challenges to the government’s new surveillance laws have come forth since 2001, but the government has typically stopped the judicial process in its tracks, arguing that the case cannot proceed because aspects of the program must remain secret for national security reasons and that plaintiff’s don’t have “standing” to challenge the law unless they know for sure they have been surveilled.
But “the constitutionality of the global spying is not directly at issue,” writes Lyle Denniston at the SCOTUS blog. ”[T]he sole issue is whether anyone has a legal right to file a lawsuit against it.”
“As part of its concerted campaign to prosecute whistleblowers and to classify state secrets,” writes Jeff Rosen at The New Republic, “the Obama administration has taken a position in Clapper that makes the Bush administration pro-secrecy campaign seem pale in comparison: namely, that no one can challenge warrantless surveillance unless the government tells you in advance that you’re being surveilled—which national security interests prevent it from doing.”
The New York Timescalled the Obama administration’s position in the case “a particularly cynical Catch-22: Because the wiretaps are secret and no one can say for certain that their calls have been or will be monitored, no one has standing to bring suit over the surveillance.”
So while it is now known that the government has been increasingly spying on its own citizens without warrant, an abominable violation of basic constitutional rights, the government is trying to say that unless specific cases of surveillance are known, which is impossible because of their own secrecy, the courts cannot challenge these blatant violations of the law.
This recent CSIS report is a stern warning that America needs to draw down the Empire, lest bankruptcy and collapse do us in first. It focuses on five trends that necessitate American decline and roll-back: “disappearing finances; rising alternative power centers; declining US military predominance; lack of efficacy of key non-military instruments of power; and reduced domestic patience for global adventures.”
The very definition of grand strategy is holding ends and means in balance to promote the security and interests of the state. Yet, the post-war US approach to strategy is rapidly becoming insolvent and unsustainable – not only because Washington can no longer afford it but also, crucially, because it presumes an American relationship with friends, allies, and rivals that is the hallmark of a bygone era. If Washington continues to cling to its existing role on the premise that the international order depends upon it, the result will be increasing resistance, economic ruin, and strategic failure.
The Obama administration has explicitly shifted away from reliance on massive land-wars and nation-building experiments – at least relative to the Bush administration – and toward drones and elite Special Operations teams being secretly deployed wherever and whenever. But we in fact do not see any sort of structural roll-back.
Obama is still pursuing expansion and impulsive interventionism: from the opportunistic (and unconstitutional) war in Libya; to laying the groundwork for another decade of occupation in Afghanistan; the never-ending drug war in Latin America; and flagrant, 19th-century-style military imperialism in Asia-Pacific.
I found the public opinion section of the report notable:
A 2009 poll by the Pew Research Center found that 49 percent of those surveyed, an all-time record, said that the United States should “mind his own business internationally and let other countries get along the best they can on their own.” That number jumped from 30 percent in 2002. Those who favor a powerful American leadership role in the world have also declined in Gallup polling. For example, the percentage fell from 75 and 2009 to 66 in mid-2011, while the percentage advocating a far more minimal US role grew from 23 percent to 32 percent. Over 40 percent of Americans now say the country spends too much on defense compared with less than a quarter who say it spends too little.
All of that makes Ron Paul’s incredible surge in popularity since 2008 seem like it was all inevitable in the end.
See here for why the worry about “American decline” chiefly concerns the ruthless foreign policy elite, but would be immensely beneficial for almost everyone else.
The New York Times this past weekend published a rather remarkable article talking openly about some basic facts that it typically ignores completely: (1) al-Qaeda is primarily motivated by America’s “unqualified support for Israel and the rulers of the Persian Gulf states,” as well as US militarism in the region, (2) al-Qaeda and affiliated terrorist threats are not nearly as big a danger as Washington would have us believe.
While “jihadists of various kinds,” the article says, “are flourishing in Africa and the Middle East,” Americans are notably misled regarding the actual threat they pose.
…most of the newer jihadist groups have local agendas, and very few aspire to strike directly at the United States as Osama bin Laden’s core network did. They may interfere with American interests around the world — as in Syria, where the presence of militant Islamists among the rebels fighting the government of Bashar al-Assad has inhibited American efforts to support the uprising. But that is a far cry from terrorist plots aimed at the United States itself.
A far cry, indeed. But the US has that bad habit of declaring the world it’s own backyard. One group’s local agenda is another American imperialist’s threat to the homeland.
Importantly, the article says that unfortunately, “most of the political realities that inspired Bin Laden’s organization are still in place,” like unqualified support for Israel, propping up Arab dictatorships, and bombing various countries in the region on a near daily basis. That doesn’t bode well for anybody, as I’ve talked about at length.
Even on the margins, the US seems intent on stoking its own threats. The article mentions Boko Haram, an Islamist group in Nigeria that has an agenda for Nigeria and Nigeria alone. Does anybody think it helps that, for example, a congressional report last year insisted on building up Nigerian security forces and essentially starting a proxy war with Boko Haram? “While I recognize there is little evidence at this moment to suggest Boko Haram is planning attacks against the [US] homeland, lack of evidence does not mean it cannot happen,” Patrick Meehan, the chairman of the committee that drew up the report was quoted as saying.
It reminds me of this Washington Post article last year that said even as the Obama administration bombs Somalia, emphasizing the threat posed by al-Shabab, officials were concerned “that a broader [drone] campaign could turn al-Shabab from a regional menace into an adversary determined to carry out attacks on US soil.” Brilliant.
But even despite America’s stubborn insistence on a stupid, overly interventionist foreign policy that creates more enemies than it eliminates, the “terrorist threat” is small and getting smaller.
The National Counterterrorism Center’s annual report for 2011 said about 10,000 acts of violence occurred in 2011 that the government classifies as terrorism, killing about 13,000 people total. Zero terrorist attacks occurred in the US and three-quarters of the fatalities were in just four countries, which happen to be virtual war zones: Afghanistan, Iraq, Pakistan, and Somalia.
Incidentally, those all happen to be countries in which US foreign policy has been excessively interventionist and brutal and which only became hot-spots of “terrorism” following US wars or proxy wars.
The report says, out of about 13,000 people, only 17 American citizens were killed in terrorist incidents last year: 15 in Afghanistan, one in Jerusalem, and one in Iraq. Even counting all 17 US deaths by terrorism last year, that amounts to .001% of Americans died from government-designated terrorism last year.
Compare that with the amount of time and resources allocated to address this overwhelming terrorist threat.
“Warnings about a dangerous world,” writes Micah Zenko in Foreign Affairs, “benefit powerful bureaucratic interests. The specter of looming dangers sustains and justifies the massive budgets of the military and the intelligence agencies, along with the national security infrastructure that exists outside government — defense contractors, lobbying groups, think tanks, and academic departments.”