Posts Tagged ‘predator’

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

The Trenchant Observer

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UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes

Friday, August 6th, 2010

UPDATE

The Center for Constitutional Rights and the American Civil Liberties Union have filed suit against the Treasury Department for rules that require them to obtain a license before they can challenge the inclusion of Anwar al-Aulaqi on the U.S. list of individiduals who may be targeted for extrajudicial execution.

Spencer S. Hsu, “Civil rights groups sue Treasury over targeting of terror suspects for killing, Washington Post, August 4, 2010

The targeting of Al-Aulaqi raises questions regarding the bases of the international law governing the use of force. Beyond the question of whether the U.S. is or is not violating the most basic norms of iternational law, the Al-Alauqi case raises fundamental questions relating to our international legal strategy and our vision of the future world we hope to shape. On April 7, 2010, we wrote the following:

The United States has gotten itself into a terrible jam, having adopted the legal justification of the Bush administration for targeted killings.

The Washington Post reports today that,

A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military’s Joint Special Operations Command…

Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.

“He’s in everybody’s sights,” said the U.S. official, who spoke on the condition of anonymity because of the topic’s sensitivity….

–Greg Miller, “Muslim cleric Aulaqi is 1st U.S. citizen on list of those CIA is allowed to kill,” Washington Post, April 7, 2010

If this death warrant is executed in circumstances that do not justify the use of force in self-defense, either at the international or at the domestic level with the permission of the territorial state, its execution may constitute a war crime.

Some lawyers have won the argument within the Obama administration that it is lawful to kill a member of a terrorist organization, particularly if he has been involved in past acts of terrorism, wherever he can be found.

This argument is based on provisions of humanitarian law or “the law of war” that distinguish between combatants who are lawful targets and non-combatants who are not.

It ignores, however, the fact that provisions of humanitarian law are themselves limited by key provisions of the United Nations Charter, particularly Article 2 paragraph 4 which prohibits the use of force against the territorial integrity or political independence of any state, except in the case of self-defense against an armed attack as provided in Article 51.

It is universally recognized that Article 2 paragraph 4 is a norm of jus cogens, or mandatory law from which there can be no exception. Humanitarian law grants no right to act beyond the limitations of this prohibition.

The use of lethal force to punish past actions, moreover, constitutes an armed reprisal, which is universally recognized as prohibited by international law.

In other cases, where the territorial state grants its permission to a foreign state to carry out a targeted killing, such a killing is legal under international law only if it meets the requirements of international human rights law. For the territorial state can cede to another state no greater rights than it itself possesses, and indeed it is far from clear that it can do even this.

Both Article 2 paragraph 4 of the Charter and international human rights law allow for the use of lethal force as may be required for self-defense or for self-defense and the defense of others by the authorities of the territorial state.

In both cases the requirement is that force be used only as a last resort against an ongoing or imminent use of force by the target, or after judicial proceedings and due process of law.

This element is initially self-judging in character, opening the door to abuse. However, just as police allegations that they have acted in self-defense are subject to judicial review, the self-defense justification of a state conducting targeted killings, and of the individuals executing the state’s orders, are subject to review by the courts of other countries exercising universal jurisdiction and potentially, at least in the future, by the International Criminal Court. Actions taken by a state in exercise of the right of self-defense are, moreover, to be reported to the U.N. Security Council under Article 51 of the Charter.

The use of force against an individual who has laid down his arms or ceased and desisted from active participation in attacks (or, in the language of humanitarian law, has withdrawn from combat or placed himself hors de combat) is an extrajudicial killing or assassination, and would also constitute a war crime.

The problem here is that the U.S. government has become so accustomed to being prosecutor, judge and executioner that it has forgotten that international legal norms are involved, whose content and validity are necessarily determined by others, and that the ultimate validity of the legal justifications for targeted killings are likely one day to be determined by the judges of an international court or a national court exercising universal jurisdiction.

Just as individuals who participated in the “harsh interrogation techniques” program carried out under the Bush administration would be well advised to carefully choose the countries they travel to, now but also particularly in five or ten years, those individuals currently involved in the targeted killings program should also be very confident they are acting in lawful exercise of the right of self-defense when executing their orders.

For if their actions do not satisfy the requirements of self-defense, they constitute the commission of unlawful assassinations, and probably war crimes. As established at Nuremberg, the argument that such actions were carried out under the orders of superiors, or “due obdience”, is not a permissible defense. Nor is the argument that the defendant believed he was acting in accordance with international law likely to be given any weight as a defense.

The United States has now become an official hit squad, which will go out and kill anyone on its list of targetable individuals.

Yet it is hard to see how the United States can kill its way to peace, in Afghanistan or in the struggle against terrorists in different countries throughout the world.

Whatever the short-term gains from the current approach, and it is far from clear that it does not create more terrorists than it kills, President Obama and his international lawyers need to rethink their approach to targeted killings.

They need to reexamine the issue, both in order to avoid extrajudicial executions and assassinations, and to shape the standards which will also guide other states in the future in deciding whether or not to put someone on a hit list and then to go out and kill him.

It is time to back off from the Wild West, and to return to civilization and the task of building out a viable international legal order.

(end of April 7, 2010 article)

See also the following articles by the Observer:

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Other articles by the Observer on targeted killings may be found by entering “Targeted Killings” in the Search box on the lower right side of the home page.

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

After McChrystal: Obama, Petraeus, and Fixing a Failed Strategy in Afghanistan

Wednesday, June 23rd, 2010

The newspapers will be filled for days with information and views regarding Obama’s June 23 firing of General Stanley McChrystal and his replacement by General David Petraeus as commander of U.S. and allied forces in Afghanistan.

McChrystal’s negative comments about his colleagues as reported in Rolling Stone magazine reflected very poor judgment, as McChrystal himself and also Secretary of Defense Robert Gates admitted. There were also previous instances of very poor judgment by McChrystal since he assumed command in Afghanistan.

A number of questions arose which Obama may have taken into account in reaching his decision to replace McChrystal.

One of the most important was the question of how McChrystal could be an effective team member on a team about whose members he or members of his entourage had spoken in such disparaging terms.

How could he lead the ISAF coalition, or keep France on board with the coalition? Did McChrystal bear any responsibility for the fact that some of our closest allies (e.g., Canada) are withdrawing their forces from Afghanistan?

Even more fundamental questions were raised, however, which now will have to be considered anew and with fresh eyes by Petraeus, Obama, and the new team.

Perhaps the most important is what the strategy of the United States and coalition forces is going to be going forward, after the abject failure of the current strategy led by McChrystal.

The official U.S. counterinsurgency strategy for Afghanistan is to secure and protect the population rather than focus on killing the enemy. The real policy as it is currently being implemented is one that focuses on killing leaders of the Taliban through predator drone strikes and assassination by special operations forces.

The lack of progress in Marja reveals that the much-touted concept of a “government in a box” to be installed following the military’s flushing out of the Taliban is a cruel illusion.

It is not going to happen, not under the government of Hamid Karzai.

The real policy is one of beating down the enemy through the use of the U.S. killing machine that couples real-time intelligence with the capabilities of drone aircraft and special operations forces on the ground. Reports that half the U.S. forces being deployed to Afghanistan are special ops and similar troops underlines this point.

The real policy, led by McChrystal, has not worked. The situation in Afghanistan has not improved since he assumed command. To the contrary, there are many indications that it has continued to deteriorate.

As for our counter-insurgency strategy, the strategy laid out by David Petraeus and his colleagues in the U.S. Army Counterinsurgency Manual in December 2006, it is submitted, requires the presence of troops on the ground in numbers that far exceed the number of troops now in Afghanistan, even after the so-called “surge”. Should the U.S. begin to withdraw troops in mid-2011, as promised, the idea that we are implementing Petraeus’ counter-insurgency strategy as enunciated in U.S. military doctrine would become even more divorced from reality than it is today.

To be sure, the 2011 date for “the commencement” of a process of withdrawal, subject to conditions on the ground, was never more than a political fiction used to make the increase in American troops politically palatable back home in the U.S.

Now, things are going really badly in Afghanistan.

The principal men that permitted the U.S. to have some independence from Ahmed Karzai’s control of intelligence provided to the U.S. military in the South, Amrullah Saleh, the former Afghan intelligence chief, with longstanding and close ties to the CIA, and Hanif Atmar, Minister of the Interior, are gone. Saleh was fired by Karzai several weeks ago, when the Minister of the Interior in charge of the police was also sacked. These were two men viewed by U.S. officials as able counterparts.

The end result of their dismissal was that Ahmed Wali Karzai, President Karzai’s half-brother, has an even firmer grip on the flow of intelligence shared with the Americans and the allies in Kandahar and the South. Without that intelligence, it is likely that U.S. forces would be operating largely in the dark, at least in strategic terms.

The Karzai brothers had, in effect, “rolled” McChrystal, which may help to explain why Hamid Karzai came out so strongly in support of McChrystal, the “best” U.S. commander Afghanistan has ever had, in his view. One need hardly ask who he thinks the worst has been (hint: he has a German name).

General McChrystal had earned a new assignment. The stress had obviously gotten to him, or he would not have been making colossal errors in judgment. If he made these poor judgments in speaking about his colleagues and allowing those around him to speak about his colleagues in a disparaging manner, what other errors of judgment might he have made?

His judgments affected the lives of thousands of U.S. and allied troops.

It is clear now, if it wasn’t last fall, that President Obama made a deeply flawed decision when he handed control over our policy in Afghanistan to the military in general and McChrystal in particular.

The much-touted policy review on Afghanistan represented no more than a delaying tactic designed to generate political support and gain time, for what in the end was an approval of McChrystal’s planned “surge” of 40,000 men. Obama authorized “30,000” which with logistical and other support became a much larger number, and with 10,000 additional promised allied troops, McChrystal’s demand was essentially satisfied.

Our nation’s strategy in Afghanistan has become twisted and distorted beyond recognition. We say we are implementing Petraeus’ counterinsurgency doctrine, when in point of fact half of the forces we are sending to the country are Special Ops and similar forces, to assist in the project of decapitating the Taliban while proving our killing machine is more effective than theirs.

We have abandoned the democratic project which the U.S., allied governments and the U.N. had as their stated objective for eight years, leaving Afghan police and military and ordinary Afghan citizens with no ideal to fight for.

The war has become about how to get the U.S. forces out, even if this means returning the people of Afghanistan to the power of the warlords, and the women of Afghanistan to the warlords and the repression and abuse of a very backward traditional and tribal society.

Instead of leading the people of Afghanistan into the 21st century, we have decided that it is sufficient for our exit purposes to allow them to return to the 19th (or 13th) century.

Nonetheless, Obama now has an opportunity to begin to correct the bad decisions he has made in the past on Afghanistan.

He should immediately reconstitute his circle of advisers to ensure that his Afghanistan team includes sufficient civilians of sufficient experience and stature to counterbalance the strong concentration of military advisers in his inner circle. These should include top U.S. diplomats with experience working in the region.

The first task of this reconstituted group should be to reread Karl Eikenberry’s cables from last November, and to devise a strategy for going forward.

That strategy must recognize that Hamid Karzai is not, and never will be, a reliable partner.

It must focus on ensuring to the maximum extent possible that the elections to the National Assembly to be held on September 18, 2010 are free and fair elections.

We must reconsider the democratic project in Afghanistan, so quickly abandoned by Obama, but which may alone contain the seeds of motivation that could one day lead to an effective national Afghan army and police force.

It must address the urgent need to prevent the further alienation of present and former members of the Northern Alliance, including Abdullah Abdullah, Amrullah Saleh, and others. Little will be gained if a reconciliation between Karzai and the Taliban in the South (should it ever occur) leads to renewed hostilities between the North and the South.

Presumably, Petraeus and Obama, with input from Eikenberry, Holbrooke, and others, can take steps to improve the types of and deployment of troops going to Afghanistan, in view of the limited force levels available from the U.S. and other allies.

It will be important for Obama, Gates and Petraeus to lead a process of reshaping our strategy in Afghanistan that reflects Petraeus’ own, fresh understanding and vision, and that of other key team members including in particular Karl Eikenberry, instead of simply trying to continue to implement the current strategy.

This reexamination should be done as soon as possible. In particular, McChrystal’s accommodations with the Karzai brothers with respect to the Kandahar campaign should be revisited.

The decisions faced by Obama are much bigger than the decision of whether or not to fire McChrystal. The deeper questions include the following:

When will the United States reconcile the total contradiction between the facts on the ground in Afghanistan and our real strategy there, with the requirements of official U.S. counterinsurgency strategy as enunciated by David Petraeus and the U.S. military?

When will the U.S. strategy in Afghanistan shift from trying to out-kill the Taliban with our incredible killing machine to a more nuanced, informed and broad-gauged strategy?

When will the United States have a military and civilian team in place in and for Afghanistan that can work effectively with each other, and with our allies?

When will President Obama pay enough sustained attention to Afghanistan to get it right?

What is needed now is not eight afternoons over a number of months, but two weeks at Camp David with a small group of advisers.

Obama could also spend a day a week working alone, without aides, on getting his own thinking straight on Afghanistan.

The United States and the world need his leadership, not his acquiescence in the failed policies of the past.

The Trenchant Observer

observer@trenchantobserver.com
Follow “trenchantobserv” on Twitter.com

Comments are invited.

McChrystal, Petraeus, COIN, and Fixing a Failed Strategy in Afghanistan

Wednesday, June 23rd, 2010

The newspapers will be filled for days with information and views regarding Obama’s meeting with Stanley McChrystal and his Afghanistan team on Wednesday, June 23, in Washington.

McChrystal’s negative comments about his colleagues as reported in Rolling Stone magazine reflect very poor judgment, as McChrystal himself and also Secretary of Defense Robert Gates have admitted. There have been previous instances of very poor judgment by McChrystal since he assumed command in Afghanistan.

A number of questions arise.

One of the most important is the question of how McChrystal can be an effective team member on a team about whose members he or members of his entourage have spoken in such disparaging terms.

How can he lead the ISAF coalition, or keep France on board with the coalition? Does McChrystal bear any responsibility for the fact that some of our closest allies (e.g., Canada) are withdrawing their forces from Afghanistan? Could our disregard for international law with our policy of targeted killings have had some negative impact in this regard?

Even more fundamental questions are raised, however.

Perhaps the most important is what the strategy of the United States and coalition forces is going to be going forward, after the abject failure of the current strategy led by McChrystal.

The official U.S. counterinsurgency strategy for Afghanistan is to secure and protect the population rather than focus on killing the enemy. The real policy as it is currently being implemented is one that focuses on killing leaders of the Taliban through predator drone strikes and assassination by special operations forces.

The lack of progress in Marja reveals that the much-touted concept of a “government in a box” to be installed following the military’s flushing out of the Taliban is a cruel illusion.

It is not going to happen, not under the government of Hamid Karzai.

The real policy is one of beating down the enemy through the use of the U.S. killing machine that couples real-time intelligence with the capabilities of drone aircraft and special operations forces on the ground.

The real policy, led by McChrystal, has not worked. The situation in Afghanistan has not improved since he assumed command. To the contrary, there are many indications that it has continued to deteriorate.

As for our counter-insurgency strategy, the strategy laid out by David Petraeus and his colleagues requires the presence of troops on the ground in numbers that far exceed the numbers now in Afghanistan, even after the so-called “surge”. Should the U.S. begin to withdraw troops in mid-2011, as promised, the idea that we are implementing Petraeus’ counter-insurgency strategy as enunciated in U.S. military doctrine would become even more delusional than it is today.

To be sure, the 2011 date for “the commencement” of a process of withdrawal, subject to conditions on the ground, was never more than a political fiction used to make the increase in American troops politically palatable back home in the U.S.

Now, things are going really badly in Afghanistan.

The principal men that permitted the U.S. to have some independence from Ahmed Karzai’s control of intelligence provided to the U.S. military in the South, Amrullah Saleh, the former Afghan intelligence chief, with longstanding and close ties to the CIA, and Hanif Atmar, Minister of the Interior, are gone. Saleh was fired by Karzai several weeks ago, when the Minister of the Interior in charge of the police was also sacked. These were two men viewed by U.S. officials as able counterparts.

The end result of their dismissal was that Ahmed Karzai has an even firmer grip on the flow of intelligence shared with the Americans and the allies in Kandahar and the South. Without that intelligence, U.S. forces would be operating largely in the dark.

The Karzai brothers have, in effect, “rolled” McChrystal, which may help to explain why Hanid Karzai has come out so strongly in support of McChrystal, the “best” U.S. commander Afghanistan has ever had, in his view. One need hardly ask who he thinks the worst has been, but I would wager he has a German name.

General McChrystal has earned a new assignment. The stress has obviously gotten to him, or he would not be making colossal errors in judgment. If he has made these poor judgments in speaking about his colleagues and allowing those around him to speak about his colleagues in a disparaging manner, what other errors of judgment may he have made?

His judgments affect the lives of thousands of U.S. and allied troops.

It is clear now, if it wasn’t last fall, that President Obama made a fatally flawed decision when he handed control over our policy in Afghanistan to the military in general and McChrystal and Petraeus in particular.

The much-touted policy review on Afghanistan represented no more than a delaying tactic designed to generate political support and gain time, for what in the end was an approval of McChrystal’s planned “surge” of 40,000 men. Obama authorized “30,000” which with logistical and other support became a much larger number, and with 10,000 additional promised allied troops, McChrystal’s demand was essentially satisfied.

Our nation’s strategy in Afghanistan is twisted and distorted beyond recognition. We say we are implementing Petraeus’ counterinsurgency doctrine, when in point of fact half of the forces we are sending to the country are Special Ops and similar forces, to assist in the project of decapitating the Taliban while proving our killing machine is more effective than theirs.

We have abandoned the democratic project which the U.S., allied governments and the U.N. had as their stated objective for eight years, leaving Afghan police and military and ordinary Afghan citizens with no ideal to fight for.

The war has become about how to get the U.S. forces out, even if this means returning the people of Afghanistan to the power of the warlords, and the women of Afghanistan to the warlords and the repression and abuse of a very backward traditional and tribal society.

Instead of leading the people of Afghanistan into the 21st century, we have decided that it is sufficient for our exit purposes to allow them to return to the 19th (or 13th) century.

Nonetheless, Obama now has an opportunity to begin to correct the bad decisions he has made in the past on Afghanistan.

Regardless of when McChrystal leaves, Obama should immediately reconstitute his circle of advisers to ensure that his Afghanistan team includes civilians to counterbalance the strong concentration of military advisers in his inner circle. These should include the top U.S. diplomats working in the region. The first task of this reconstituted group should be to reread Karl Eikenberry’s cables from last November, and to devise a strategy for going forward.

That strategy must recognize that Hamid Karzai is not, and never will be, a reliable partner.

It must focus on ensuring to the maximum extent possible that the elections to the National Assembly to be held on September 18, 2010 are free and fair elections. We must reconsider the democratic project in Afghanistan, so quickly abandoned by Obama, but which may alone contain the seeds of motivation that could one day lead to an effective national army and police force.

It must address the urgent need to prevent the further alienation of present and former members of the Northern Alliance, including Abdullah Abdullah, Amrullah Saleh, and others. Little will be gained if a reconciliation between Karzai and the Taliban in the South (should it ever occur) leads to renewed hostilities between the North and the South.

Should McChrystal go?

The question is not if, but when.

When will the United States reconcile the total contradiction between the facts on the ground in Afghanistan and our real strategy there, with the requirements of official U.S. counterinsurgency strategy as enunciated by David Petraeus and the U.S. military?

When will the U.S. strategy in Afghanistan shift from trying to out-kill the Taliban with our incredible killing machine to a more nuanced, informed and broad-gauged strategy?

When will the United States have a military and civilian team in place in and for Afghanistan that can work effectively with each other, and with our allies?

When will President Obama pay enough sustained attention to Afghanistan to get it right?

What is needed is not eight afternoons over a number of months, but two weeks at Camp David with a small group of advisers.

Obama could also spend a day a week working alone, without aides, on getting his own thinking straight on Afghanistan.

The United States and the world need his leadership, not his acquiescence in the failed policies of the past.

The Trenchant Observer

observer@trenchantobserver.com
Follow “trenchantobserv” on Twitter.com

Comments are invited.

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council

Wednesday, June 2nd, 2010
Predator Drone Firing Hellfire Missile

Predator Drone Firing Hellfire Missile

Today, Philip Alston, a highly distinguished human rights expert and U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, published a report addressing international law issues raised by the policy of “targeted killings”.

See Philip Alston, “Study on Targeted Killings,” (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum. (U.N. General Assembly Doc. A/HRC/14/24/Add.6)
May 28, 2010

See also the following:

Peter Finn, “U.N. official: U.S. should end CIA drone attacks in Pakistan,” The Washington Post, May 28,2010

Pankaj Mishra, “America’s exalted capacity for murder, “The Guardian (guardian.co.uk), May 21, 2010

Chase Madar, “How Liberal Law Professors Kill: Harold Koh Learns to Love Bomb Power,” Counterpunch, May 14-16, 2010.

For the most recent article on Targeted Killings (and links to earlier articles) by The Observer, see

“Targeted Killings by Drone Aircraft: A View From India, and Some Observations,”
May 20, 2010

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

Intelligence Matters: U.S. Dependence on Intelligence From Wali Karzai Shapes Kandahar Strategy

Thursday, May 27th, 2010

Quotation

“La guerre, c’est une chose trop grave pour la confier à des militaires.”

“War is too serious a matter to just be handed over to some military men.”

–Georges Clemenceau

…..

U.S. and ISAF forces appear to be almost totally dependant on Afghan intelligence in Kandahar, and in particular on intelligence form Wali Karzai who reportedly controls the flow of intelligence information in the region to allied troops. This dependence, together with President Obama’s short and externally-imposed deadlines, has reportedly reshaped military strategy in the province. This represents a shift from the U.S. counterinsurgency strategy developed by David Petraeus and others.

See Gareth Porter, “McChrystal Strategy Shifts to Raids – and Wali Karzai” , IPS (Inter Press Service News Agency), May 24, 2010.

See also earlier articles by The Observer, including:

Intelligence Matters: CIA Capabilities in Afghanistan
March 21, 2010

Intelligence Matters: Khost, The Flynn Report, and a Few Hypotheses
March 17, 2010

Understanding Obama’s Dilemma: Key Articles on Taliban Advances, CIA Role, Karzai’s Brother, Magnitude of U.S. and U.N. Failures
November 13th, 2009

The Trenchant Observer

www.trenchantobserver.com
E-mail: observer@trenchantobserver.com
Twitter: www.twitter.com/trenchantobserv

Comments are invited.

Targeted Killings by Drone Aircraft: A View From India, and Some Observations

Thursday, May 20th, 2010
Predator Drone Over Kandahar (Photo KirstTV Wigglesworth/AP)

Predator Drone Over Kandahar (Photo KirstTV Wigglesworth/AP)

…..

Quotation

“La guerre, c’est une chose trop grave pour la confier à des militaires.”

“War is too serious a matter to just be handed over to some military men.”

–Georges Clemenceau.

…..

The following article from India highlights the explosive growth in the use of targeted killings in the Afghanistan and Pakistan theaters, and alludes to their use in other countries as well:

John Cherian, “Predatory strikes,” FRONTLINE: India’s National Magazine (from the publishers of THE HINDU), Vol.27, No. 11 (May 22-June 4, 2010).

Fundamental questions exist about the permissibility of such attacks in situations where they are not conducted in strict compliance with the requirements of immediacy, necessity and proportionality in exercise of the right of individual or collective self-defense, in accordance with Article 2 paragraph 4 and Article 51 of the United Nations Charter.

In particular, the legal justification based on the distinction under international humanitarian law between combatants and non-combatants, which is used to justify such attacks against anyone believed to be associated with the Taliban or other insurgent groups in Afghanistan and Pakistan, fails to take into account the fact that Article 2 (4) and Article 51 of the U.N. Charter are  norms of jus cogens, or mandatory norms from which there can be no derogation. In other words, these norms of jus cogens are superior to and limit any rights to use force that may be contained in international humanitarian law.

Consequently, targeted killings by drone aircraft are lawful only to the extent they meet the requirements for responding to an imminent or ongoing “armed attack” against “the territorial integrity or political independence” of Afghanistan or Pakistan, or if conducted with the consent of the territorial state they meet the requirements of international human rights law. International human rights law permits the use of force in self-defense or in defense of others by state authorities. It does not permit the widespread targeting and execution of criminals or terrorists without due process of law, when the requirements of self-defense are not met.

Three distinct bodies of law are relevant here: 1) the international law governing the use of force articulated in Article 2(4) and Article 51 of the U.N. Charter, which has become customary law and jus cogens; 2) international humanitarian law; and 3) international human rights law. It should be recalled that each of these bodies of law has as among its essential purposes the avoidance or reduction of the killing and injuring of individual human beings. The original purpose of the distinction between combatants and non-combatants in international humanitarian law was to limit attacks on civilians and civilian targets in traditional battlefield settings.

It is noteworthy that, according to the article from India, a very large number of innocent civilians have been killed in targeted killings by U.S. drone aircraft.

See also earlier articles by The Observer on the subject of targeted killings:

Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes
April 7, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications
February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3rd, 2010

The lawfulness of targeted killings by drone aircraft under international law should be of great concern to the United States, for perceptions of legitimacy of its actions involving the use of force are likely to have a broad impact not only on populations in the Middle East and South Asia, but also on the populations and governments of its coalition allies in Afghanistan, as well as on other nations throughout the world.

European allies in a coalition conducting such attacks may be particularly attentive to whteher or not they are conducted in accordance with international law. Article 25 of the German Basic Law (Grundgesetz) or Constitution, for example, establishes the following:

Article 25
The general rules of public international law constitute an integral part of federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the federal territory.

German participation in coalition actions involving targeted killings by drone aircraft in situations where such actions do not meet the requirements of the right of self-defense against armed attack, or self-defense in compliance with international human rights law (when the attacking state is acting with the consent of the territorial state), would appear to present serious legal issues for the German government. Article 25 of the Basic Law includes both customary international law and the special norms of customary international law which have achieved the status of jus cogens.

A further point of interest is that the United States is using non-military personnel to conduct these attacks, whether C.I.A. agents, “contractors” on the ground gathering targeting information and therefore participating in the attacks, or private “contractors” acting as “pilots” of the drones from facilities thousands of miles away.

If some of the actions in which they are participating are not legal under international law, and it is suggested above that many may not be, then these individuals could potentially face criminal liability in the future for the commission of war crimes. While the U.S. has taken vigorous action to prevent its citizens from from being tried either under the jurisdiction of the International Criminal Court or the universal jurisdiction that may be exercised by national courts of any country when their domestic law authorizes them to do so, the historical trend is in the other direction. It is quite conceivable, if not likely, that within 10 or 20 years these individuals could become subject to arrest and trial when traveling abroad.

In any event, these targeted killings do not seem to be stopping the Taliban, which in Afghanistan still appear to be very present in Marja, the location of a much-touted recent American offensive, as well as in Kandahar province where a huge offensive by the United States and its allies is imminent or perhaps already underway.

The Trenchant Observer

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Intelligence Matters: CIA Capabilities in Afghanistan

Saturday, March 20th, 2010

Robert Baer’s GQ article on the attack on the CIA base in Khost province and what it suggests about the capabilities of the CIA has drawn wide attention. At the same time, revelations about the CIA’s use of outside civilian contractors to collect information on individuals to be targeted for killing by predator attacks and other methods, has raised very serious questions.

Given common news management practices in Washington, it would not be surprising if CIA Director Leon Panetta’s granting of an interview on March 17, 2010, in which he praised the successes of the CIA in attacking Al Quaeda and the Taliban, was a response by individuals and/or an organization who felt under attack, and very much wanted to distract attention from consideration of the very serious criticisms contained in the articles cited, and others.

Be that as it may, it is essential that the substantive criticisms that are contained in or flow from Baer’s article and others remain clearly in view, and receive sustained and critical attention from the press, policymakers including civilian and mlitary leaders responsible for our actions in Afghanistan, and citizens of the U.S. and other countries contributing to the effort in Aghanistan.

To recapitulate but a few of the criticims, it has been reported that

1. The CIA has been stretched too thin and lacks the trained and experienced operatives it needs to operate effectively in Afghanistan;

2. The Agency’s intelligence on Afghanistan has become subordinated to that of military intelligence as a result of several factors, including:

a) the fact that the number of military intelligence officials vastly exceeds the number of CIA officials in Afghanistan;

b) the frequent and short rotations of CIA officials (of e.g., three months in the field at a time) do not permit the development of the local knowledge and expertise that is required to provide valuable human intelligence on the situation throughout the country;

c) General McChrystal’s having secured the appointment of a friend as CIA station chief in Kabul, after the Agency’s own choice (an individual who had worked with Richard Holbrooke in the Balkans) was blocked by Holbrooke;

Regarding the appointment of the CIA Kabul Station chief and the nature and quality of CIA intelligence in Afghanistan, Matthew Cole of ABC News reports:

The current and former intelligence officials say that putting a paramilitary officer in charge on the Afghan base highlights the CIA’s evolving role. The CIA’s historic wartime role was collecting information in order to shape overall strategy. Now the agency has been relegated to a supporting role, supplying tactical intelligence to help the military. The military determines the strategy.

“The CIA is supposed to be a check on the military and their intelligence, not their hand maiden,” said Robert Baer, a former CIA case officer. “This is a sign of things to come, where the military dominates intelligence.”

The problem with this shift, the officials say, is that both the military and the CIA are focusing on short-term, tactical intelligence, and ignoring the long view. The shortfall in intelligence collection was highlighted last month in a public report by the military’s top intelligence officer that was prepared for a thinktank. In the report, Major General Michael T. Flynn concluded that intelligence collection in Afghanistan was “only marginally relevant to the overall strategy.”

Flynn’s report was as critical of the CIA as of military intelligence. But it is the military that is now shaping intelligence collection in Afghanistan, in part through sheer numeric dominance. Military forces far outnumber the CIA, and the disproportion is growing. According to a current intelligence official, the CIA has roughly 800 personnel in Afghanistan scattered among 14 bases. By next summer, the military expects that it will have nearly 100,000 troops, roughly double its strength in early 2009.

Flynn concluded that the “vast intelligence apparatus is unable to answer fundamental questions about the environment in which the US and allied forces operate and the people they seek to persuade.”
–Matthew Cole, “CIA’S Influence Wanes in Afghanistan War, Say Intelligence Officials,” ABC News/ The Blotter from Brian Ross, March 19, 2010

3) The CIA is extremely dependent on Afghan intelligence services in order to navigate the physical and social spaces within Afghanistan. Such dependance represents a particularly difficult obstacle to be overcome if the U.S. objective of securing Kandahar is to succeed.

TIME magazine reports, for example,

International observers and diplomats in Kabul say Wali Karzai retains close ties with units of the U.S. special forces and the CIA in Kandahar. Last October, the New York Times alleged that Wali Karzai had been on the CIA payroll for the past eight years, a charge he denied when speaking to TIME. “I see these people, I talk to them in security meetings, but I have no control,” he said. But TIME’s sources insist that Wali Karzai in the past has threatened to call down NATO air strikes or arrange night raids by U.S. special forces on tribal elders who defied him. Says a former NATO official: “Most of our intelligence comes directly or indirectly from him. We really didn’t see this dynamic because we were so focused on the enemy.”

Perhps the deeper question is whether the CIA, blinded by its brilliant successes in 2001, has pursued the wrong mission in Afghanistan, becoming an integral part of the killing machine that joins real-time tactical intelligence with the capabilities of predator drones and special operations forces, while neglecting its core mission of providing independent strategic intelligence to the nation’s top decision-makers on what is going on in the country as a whole.

These and other questions about the CIA’s capabilities and management are the critical ones to keep in mind.

The Trenchant Observer

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Intelligence Matters: Khost, The Flynn Report, and a Few Hypotheses

Wednesday, March 17th, 2010

Our intelligence in Afghanistan doesn’t seem to be very good.

Publication of the Flynn report in January, 2010 revealed very serious shortcomings in U.S. military intelligence in the country.

The CIA intelligence on what is going on in Afghanistan–as opposed to real-time intelligence about the whereabouts of individuals to be targeted for predator drone attacks–may in fact be just as weak. 

It is hard to know for sure. 

But certain events provide suggestive clues as to the capabilities of the CIA in the country. The suicide bombing of a CIA forward operating station in Khost province on December 30, 2010 has highlighted serious weaknesses in the field, including a CIA chief who lacked critical experience on the operations side, and the fact that there was no one at the base who spoke the local language, Pashto.

The CIA’s earlier successes in 2001 in coordinating the successful campaign to topple the Taliban regime has left the agency deeply involved in the conduct of military operations, including the selection of targets and coordination of attacks by predator drone aircraft in Afghanistan and apparently Pakistan.

In the meantime, the agency seems to have neglected its core function of collecting intelligence on what is going on in Afghanistan, leaving U.S. decisionmakers highly reliant on Afghan and Pakistani intelligence agencies.

A strong hypothesis is that the lack of independent intelligence capabilities in Afghanistan has left the United States extremely dependent on the Afghan intelligence agency to navigate through a physical and social space characterized by murky power relationships and changing personalities, in a country whose languages and cultures are poorly understood by U.S. intelligence operatives and analysts.

The extremely close cooperation between the top CIA and Afghan intelligence officials in 2001, which appears to have continued, tends to support this hypothesis. See Henry Crompton interview and Amrullah Saleh interview with Laura Logan on 60 minutes, December 27, 2009.

If this hypothesis is true, it would help to explain why the Obama administration could not bring itself to support free presidential elections in a second round of voting following the August 20 first-round elections in 2009.

At the same time, the concentration of both CIA and military intelligence capabilities in and on areas of the country where fighting with the Taliban is intense may have skewed overall U.S. intelligence on what is going on in the country as a whole.  This may be particularly true in the major cities and towns where, over the medium and longer term, the allegiances of the citizens could have a decisive impact.

Khost: An Instructive Case

On December 30, 2009, a Jordanian double agent entered a CIA field station in Khost province, and detonated his suicide vest killing 7 CIA employees and his handler, a Jordanian intelligence official. Robert Baer, a former CIA agent and operative in the field, has described what occurred.  The following excerpts are indicative of the Agency’s weakened capabilities, as described more fully in the complete article:

The base chief is a covert employee of the CIA; her identity is protected by law. I’ll call her Kathy. She was 45 years old and a divorced mother of three. She’d spent the vast majority of her career at a desk in Northern Virginia, where she studied Al Qaeda for more than a decade…(An) officer who knew her told me that despite her training at the Farm, she was always slotted to be a reports officer, someone who edits reports coming in from the field. She was never intended to meet and debrief informants.

Kathy knew that there was a time when only seasoned field operatives were put in charge of places like Khost. Not only would an operative need to have distinguished himself at the Farm; he would’ve run informants in the field for five years or more before earning such a post. He probably would have done at least one previous tour in a war zone, too. And he would have known the local language, in this case Pashto. Kathy skipped all of this. Imagine a Marine going straight from Parris Island to taking command of a combat battalion in the middle of a war.

On January 10, 2010, CIA director Leon Panetta wrote a Washington Post op-ed in which he disputed that poor tradecraft was a factor in the Khost tragedy. Panetta is wrong.

As the wars dragged on, the CIA’s problems cascaded, leaving an agency with almost no officers with real field experience. Personnel were shifted in and out of assignments for three-month stints, too brief a period to really know a place or do any meaningful work. Over time, these patterns completely undid the old standard that you needed experience to lead. After a year’s tour in a post like Baghdad, an officer could pretty much count on landing a managerial position. Never mind that he’d spent his time locked down in the Green Zone, never getting out or meeting an informant….

Robert Baer, “A Dagger to the CIA,” GQ (Magazine), April 2010

See also Neal Conan’s interview with Baer on NPR’s Talk of the Nation, March 16, 2010.

An Explanation of Failures?

The analysis offered above is preliminary, but offers some explanation of why our policies in Afghanistan–particularly with respect to governance, legitimacy, and the allegiance of the people–have failed so disastrously to date.

General McChrystal’s application of General Petraeus’ and the Army’s counterinsurgency doctrine in Afghanistan is severely handicapped by a lack of sufficient troops for a country the size of Texas with a population of 28 million people, and a short time-line for the withdrawal of American forces to begin.

Moreover, hopes that a solution might consist in the reintegration of the Taliban into Afghan society under a government led by Karzai seem premature. It is still too early to predict success for the apparent wager that predator attacks against Taliban leaders in Afghanistan and in Pakistan, and pressure from the Pakistani military, will bend the insurgents’ will to the point of wanting to negotiate a settlement on terms favorable to Kabul, Islamabad and Washington.

One should hope for the best, but have a clear-eyed view of the other possibilities.

The rapid development and deployment of independent U.S. intelligence capabilities focused on what is going on throughout Afghanistan, and not merely in the South and remote areas of the country where fighting is concentrated, will be critical to whatever success can be achieved in the country.

The Trenchant Observer

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U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law

Wednesday, February 3rd, 2010

In an extraordinary statement, U.S. Director of National Intelligence Dennis Blair reportedly told a congressional committee that U.S. intelligence agencies may use lethal force against U.S. citizens abroad without judicial process. The Washington Post reports:

Director of National Intelligence Dennis C. Blair acknowledged Wednesday that government agencies may kill U.S. citizens abroad who are involved in terrorist activities if they are “taking action that threatens Americans.”

Blair told members of the House intelligence committee that he was speaking publicly about the issue to reassure Americans that intelligence agencies and the Department of Defense “follow a set of defined policy and legal procedures that are very carefully observed” in the use of lethal force against U.S. citizens.

In response to questions from Rep. Peter Hoekstra (R-Mich.), the panel’s ranking Republican, Blair said: “We take direct action against terrorists in the intelligence community. If that direct action, we think that direct action will involve killing an American, we get specific permission to do that.”

The director of national intelligence said the factors that “primarily” weigh on the decision to target an American include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans.”

Ellen Nakashima, “Intelligence chief acknowledges U.S. may target Americans involved in terrorism,” Washington Post, February 4, 2010.

Does anyone in Washington remember the Fifth Amendment to the Constitution of the United Sates of America, which provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Does anyone in Washington remember the Right to Life protected by Article 6 of the U.N. Covenant on Civil and Political Rights, and many other international human rights treaties? Under Article 4 of the Covenant, the right to life may not be suspended even “in time of public emergency which threatens the life of the nation.”

The European Convention on Human Rights contains similar protections in Articles 2 and 6, which must be of great concern to our NATO allies as these provisions are directly binding on them as part of the constitutional law of every European country.

Under international law, the right to use force in self-defense is limited by Article 2 paragraph 4 and Article 51 of the U.N. Charter to cases of “armed attack”, as that term may be interpreted under the rules of interpretation of international law, which are set forth in the Vienna Convention on the Law of Treaties. The contours of these restrictions were very clearly articulated by the World Court in its 1986 decision in Nicaragua vs. the United States.

Blair’s statement is like a lightning flash illuminating the continuation of policies undertaken in the Bush administration that authorize actions completely outside the framework of international law. These actions, if undertaken by others, would lead to targeted assassinations by other states against their opponents and those who “threaten” them or their citizens, anywhere. An opponent from one state of a regime in a second state could be assassinated in a third state–in Dubai, for example. Or London.

The Bush administration had little concern for international law. It is time to fundamentally rethink the policies involving the use of force that emerged from that cauldron of extraordinary unilateral excess, and to develop policies that are viewed as legitimate by other states–under international law.

President Barack Obama should immediately call for a full review by the Department of Justice and the Department of State as to the legality of targeted assassinations of U.S. citizens abroad, and a full review by the lawyers in the State Department of the policy of targeted assassinations generally and their legality under international law.

The Trenchant Observer

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