Tag: global war on terror (page 2 of 3)

Targeting Targeted Killing

I was asked to step-in at the last minute to write a chapter on targeted killing for a textbook on isses in the War on Terror. Given the recent OBL killing and debate about raids, etc, I was surprisingly excited at the prospect of engaging with the issue.

Although my chapter is almost done (no really, Richard, it’s on its way!) I’ve noticed some problems with researching the topic and trying to draw general conclusions as to whether or not it is a good or a bad policy.


1.What are you people talking about?

When talking about “targeted killing”, everyone means something different. Some are talking about assassination (Michael Gross for example), some specifically are talking about the Israeli policy used against alleged Palestinian militants post-November 2002 (such as Steven David); some are talking about the targeting of terrorist leaders generally (decapitation in Audrey Kurth Cronin’s book How Terrorism Ends). Nils Melzer on the other hand seems to be talking about every kind of state killing in and out of warfare from the CIA in Vietnam, to US tactics against Gaddafi in the 1980s to Israel-Palestine post-2000.


And yet all of these things are radically different policies from each other. While decapitation refers to the removal of the leadership of a group, Israel’s policy targeted anyone who was seen as part of the upper-to-middle management of terrorist organizations. It’s not just the leadership that was targeted, but the bomb-makers, planners, etc. The US drone policy seems to target “militants” generally and is done in the context of ongoing armed conflict (although I concede this is up for debate). Whereas the OBL raid was clearly targeting just OBL.

Yet many (like Dershowitz in this post here or Byman here) conflate ALL of these kinds of killing where it is convenient for his/her argument. For example, shorter Dershowitz: the US has killed Osama, ergo Israel’s tactics are legitimate. Leaving the legitimacy issue aside for a moment, these operations were two INCREDIBLY different things. You simply can’t compare one to the other – which leads me to my next point…

2. Israel-Palestine is crazy sui generis

To put it mildly, the Israel-Palestinian situation is unlike any other situation in the world. Basically, you have a well-armed democratic country in a state of confused hostilities with an internationally recognized movement (with some branches that engage in politically violent acts) directly beside it that is engaged in a struggle for independence. This is pretty much the opposite of the United State’s drone tactics in the Af-Pak region, where drones are being controlled from far away (military bases or mainland USA) against territories that are also far away to combat a threat that is, again, far away.

To draw conclusions from one and to apply it to the other simply does not make any sense. The policies are carried out in very different ways, justified very differently (Israel has a process involving courts, political figures, etc; the US president seems to be the sole authorizing force on many of the attacks against militants/terrorists). Comparing targeted killing apples and drone oranges doesn’t really seem to work.

And yet, almost all of the work on targeted killing from which assessments are made has been based on Israel’s policy in Palestine. The three major studies I can find are: Kaplan, et al. 2005; Hafez and Hatfield, 2006; Mannes 2008.

The one exception I have is the Cronin book, How Terrorism Ends where she also looks at the policy of targeting and killing militants in the Philippines and Russia. As a popular-ish book, it doesn’t go into a lot of methodological detail, but just states what happened to various movements/organisations after their leaders were killed. (Cronin is also sceptical that it works though she does admit of the Israeli policy that it may have saved some Israeli lives.)

So, while it might be the only model we have decent statistics on, but I don’t think the Israeli policy of targeted killing is appropriate one for building a comprehensive argument on targeting leaders generally.

3. Assessment of effectiveness requires counterfactual history

Many of the studies above make assessments of the Israeli-Palestinian policy by saying that it basically has no effect whatsoever. Statistics don’t lie, I suppose. But I can’t help feeling that something is missing here. While these studies don’t show a significant decrease in attacks, they don’t show a significant increase either. Who knows what would have happened without the policy. There could have been more attacks. There could have been fewer attacks. It could have stayed the same. The problem that defenders and detractors of targeted killing encounter is that we don’t really know what would have happened otherwise. So drawing conclusions about success/failure seems to necessarily involve guessing what would have or would not have happened when it reality we don’t actually know and have to rely on assumptions and guesswork.

In summary, it seems to me that 1) there is a dearth of evidence from which to draw reasonable conclusions 2) the policies are so different that a comparison is impossible – as is the extension of the lessons of one case study to another.

In this case I wonder if such policies should be justified (David, 2003) or denounced (Stein 2003; Gross 2003 and 2006) on a normative basis. For example, David justifies the policy as fulfilling a need for revenge (which he sees as morally justifiable) and Gross argues against because the use of collaborators in gathering the necessary intelligence is immoral.

This isn’t to say that quantitative studies on the issue are useless – on the contrary, we desperately need more information. But to me this seems to be a case where a discussion of morality may actually be more effective than discussing an almost impossible to measure effectiveness – at least for the immediate future.

I would be most grateful for any suggestions of further qual/quant studies on the topic from Duck readers. (I see that CATO has a speciall issue out on the US and targeted killing. However as it does not appear that it will be fully uploaded until 13 June, I’m kind of out of luck for my chapter and this post.)

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Making me Mlad: Why you can’t compare the Mladic and Osama bin Laden raids

Charli has been writing about international justice, arguing against ‘myths’ – and comparing the efforts to bring Mladic to justice as opposed to the rush to shoot Osama bin Laden in the face. Others, such as John Feffner at Foriegn Policy in Focus have made similar arguments.

I agree and disagree with some of the points being made. However I am concerned that that many of these arguments seem to completely ignore or fail to appreciate the different context of the Mladic and OBL raids. I just don’t think we can pretend these are at all similar situations – even looking beyond “status” issues, (who was/is a combatant/civilian etc). Rather, I think the core issue here is time and context.

For lack of a better term, bin Laden was caught and killed “during” the War on Terror, a period of active hostilities between the US and al-Qaeda. Mladic was captured over a decade and half after the Dayton Accords. The situation in the Balkans is far from perfect, but it’s certainly calmer. People have been able to get on with their lives as they rebuilding their homes, villages – even if scars can never perfectly heal.
The ICTY was established in 1993 (- a great way for the West/UN/European countries to look like they were doing something about the ethnic slaughter when they really weren’t). Mladic was indicted in July 1995 and surely was eligible to be captured and extradited from that point on.


There’s no question that it’s been a painful and horrible wait, but I wonder if it is also one that has allowed cooler heads to prevail? There have been protests in Serbia, of course. But they have not been on a truly significant scale. Mladic has been caught, charged, extradited (despite appeals) in under a week. Would this have actually been possible in 1995? Possible without tearing apart a freshly signed peace treaty? Aggravating a tense situation? And an angry population?

I’m not saying that international justice does not work – but I do not think 1) it always needs to take the form of an international court 2) that it should be done immediately.

Although it’s been nearly a decade since 9/11, the fact that the War on Terror has been ongoing makes the OBL situation different. bin Laden was a leader of a terrorist group actively planning attacks against the United States and other targets. Mladic, clearly a jerk of international proportions, was guilty of crimes but had returned to civilian life – and so have many others. The Hague will not become the centre of terrorist attacks or even protests. I’m not sure the same could have been said for OBL. Does this mean a trial for both was impossible? No. Does this mean the circumstances were very, very different? Yes.

The bottom line – you can’t make a fair comparison between Mladic and bin Laden when it comes to international justice.

The other reason this consideration is important is that the UN has released a report saying that both sides have conducted war crimes in Libya. Is it the best idea to indict individuals now? Or wait until the conflict is over, the country has a chance to catch its breath and then begin to take a good hard look at what has happened on its territory? Time may or may not tell.

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Reciprocity and International Law: A reply to International Jurist

On Wednesday, Xavier Rauscher at International Jurist posted his response to the hullabaloo over international law and the death of bin Laden. I’ve said my piece on it here and I’m getting tired of the issue, but Rauscher’s post is interesting because he tries to look at the “big picture” – noting that the manner in which bin Laden was killed has thrown more fuel on the fire over the “war on terror” vs “law enforcement” debate.

He also notes the commentary surrounding the fact that the debate over the issue seems to highlight the fact that within international politics we now seem to have two incompatible understandings of what international law is. Rauscher quotes American University Law Professor Ken Anderson who blogged at The Volokh Conspiracy on this point:

…what we call international law has been fragmenting for some time now into different “communities of interpretation and authority” as I somewhere called it. (…) Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law.


While disagreeing with the “conservative” tone, Rauscher responds:

It is important that the doctrinal debate on applicable international law does not lose touch with existing State Practice and more specifically States’ security concerns, lest international law becomes less relevant and hence loses its already relatively weak authority. While I am not arguing that international lawyers need to cave in systematically when confronted with a powerful State’s slightest whim, we must be always careful to address the security needs of States and offer credible and effective solutions to such issues. In the great scheme of things, international law should always be presented as a toolbox of solutions, not problems that may be negatively perceived not only by the States, but public opinion as well.

I agree with this sentiment very much.

However, I do have one major concern about the argument that Rauscher seeks to put forward:

The reason for the urgency is something that people like Kenneth Anderson completely miss in their discourse: that international law, and the international system as a whole, is founded on a fundamental principle that is reciprocity. To claim the right to invade “rogue States” for murky security reasons, to indefinitely detain “enemy combatants” in a never-ending conflict, or to send drones to kill terrorist suspects all over the world is one thing when you are the United States and believe you are a force for good – but it’s a whole other thing when other States, with perhaps less honorable goals, build their own policies on such dangerous precedents to the disadvantage of international peace and security.

There is a danger lying here in invoking reciprocity and I think the implications of it may take Rauscher to a place he may not want to go. Effectively, the principle reciprocity is what neo-conservatives in the United States have put forward as the reason to deny Guantanamo detainees any rights whatsoever. They don’t play by Geneva’s rules (or any rules, really), therefore they don’t have the right to expect treatment by the rules in turn. For example, as Alykhan Velshi and Howard Anglin have argued:

The Geneva Conventions are by no means anachronistic; they remain the proper legal framework for waging a conventional war against a regularly constituted army. But applying the strict letter of the Geneva Conventions to Islamist militants is like applying the Queensbury Rules to a donnybrook. When terrorists have shown no interest in abiding by the Geneva Conventions, it is naïve to think that we can shame them into doing so by treating them as though they have. The best way for the United States to honor the Geneva Conventions is to enforce the principle of reciprocity and deny Geneva protections to those who scorn them.

There are many other sources one could point to hear as well.

Part of the issue here is that the role of reciprocity in enforcing the law of armed conflict is not clear. The ICRC categorically rejects the idea that it plays a role in the enforcement of the laws of war (citing the first two common articles to the Geneva Conventions). However, whether or how this take on reciprocity applies to the full spectrum of war law is unclear. Keeping with Rausher’s point about state practice, I think it is fair to say that no state will constantly agree to suffer such grievances forever. As Yoram Dinstein maintains in his book on the law of armed conflict, expecting a state to do nothing in a cases involving a blatant and persistent violation of the laws of war is not reasonable and that the laws of war should not be based “on the unreasonable expectation that, when struck in contravention of LOIAC, the aggrieved State would turn the other cheek to its opponent. This sounds more like an exercise in theology than in the law of war.” (p.26)

I find myself agreeing with Dinstein,that there is still a basis for reciprocity or reprisals in the enforcement of law. However, at the same time, I would say that international law is pretty categorical on the prohibition of reciprocity against individual victims. One needs only look at Common Article 1 of the 1949 Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

So we need to be cautious when we invoke reciprocity, particularly as it relates to the War on Terror. But despite the lack of a precise agreement over the concept, arguing that the fundamental basis of international law is reciprocity full-stop, particularly when it comes to the laws of war, is potentially very flawed. It may be fairer to say that “what goes around comes around”, or warn of the danger of precedent, but the way that Rauscher states it is probably not legally correct (although I stress that he is the actual lawyer and I am the fake one). Worse, it’s an argument that has been used to justify many of the things that Rauscher is warning against.

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The 2003 Iraq War will not be forgotten

The killing of Osama bin Laden allows political leaders to further disentangle Iraq, Afghanistan and the whole war on terror concept; to wind down some operations and refocus others; to bring some stories to light and push others aside, to be forgotten. But how do those who served in these wars feel about this? In today’s New York Times Captain Shannon P. Meehan, a US veteran of the 2003 Iraq War, published a powerful statement of alienation on this matter. Meehan felt no closure on hearing of bin Laden’s death. It only brought a sense of distance and disconnection. It reminded him he had been part of the bad war, the war whose meaning is already settled in what he calls the ‘shifting public memory of war’. And he must live with the severe injuries he suffered regardless. He writes: 


So, as much as I want to feel a part of this moment, to feel some sense that I contributed to it, I do not. As a veteran of the Iraq war, I do not feel entitled to any sort of meaningful connection to this achievement. Years of political and public criticism of the Iraq war has pushed me to believe that I did not fight terror, but rather a phantom.
With all the physical, mental and emotional pains I still have, I feel like a dying man who fought in a dying war, and that my body braces and hearing aids serve as a reminder that my greatest “achievement” in life will be remembered as a mistake.
This same week the last British male veteran of WW1 died. Claude Choules, who went on to spend most of his life in Australia, also seemed to remember his war with critical distance. In its public notice of Choules’ death, the UK Ministry of Defence noted, ‘Despite his impressive military career, Mr Choules became a pacifist. He was known to have disagreed with the celebration of Australia’s most important war memorial holiday, Anzac Day, and refused to march in the annual commemoration parades.’ Although WW1 is settled in public memory as the ‘Great War’, Choules resisted this interpretation. What is interesting, today, is that Meehan is publicly reflecting on such a settled narrative. His challenging article is in mainstream media and being spread through social media. Choules had no such opportunity in his day. The new media ecology seems to accelerate both the creation and the contestation of war memory.
But memory is not just about media. Meehan draws attention to his physical pain, to injuries that remind him daily of the Iraq War. In Diffused War Andrew Hoskins and I explored Jay Winter’s concept of ‘embodied memory’ as something that is shared by the body of the sufferer and the gaze of the onlooker. If we have an obligation to remember, we must also look at veterans’ bodies and not just war films, news photos and milblogs. War memory is inscribed on bodies, and there are a lot of bodies from Iraq.
The killing of bin Laden and drawing back from Iraq won’t make the Iraq War disappear. The US and its allies will have to decide how they want to remember it, what memorials will be built, and how to deal with the ambiguities and divisions within the shifting public memory of the war.
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Thoughts on Bin Laden, #47

I’ll make it quick.

1. He’s dead. But that won’t stop the vast, academic industry around this war. We academics really have done very well out of the war on terror for the most part. We have a strong professional interest in not facing up to the raw strategic reality, that Al Qaeda has become largely a third-order nuisance, dangerous but mainly in terms of baiting us to do stupid things, and a diversion from much more difficult and serious stuff, like the vast imbalance between our power, resources and commitments, the near collapse of our financial system (September 2008, as well as 2001, is a critical date), the overloading of the planet with people competing for dwindling resources, the fact we still have hair-trigger nuclear weapons systems and false alarms and close calls, and that not so long ago, Boris Yeltsin had the nuclear briefcase before him as he decided whether to launch a nuclear attack in response to a Norwegian weather rocket mistaken for an incoming attack. No, an endless war on terror and a ‘global counterinsurgency’ lets us opine about such ticklish subjects as sectarian hatred, multiculturalism, alienated young men, globalisation, nationbuilding, etc etc and a whole network of institutions and careers built on it.

2. For just a small example, I remember arguing with a member of an ‘insurgency’ study group in a prominent university. When I made the blunt point that AQ attacks against us of any significance have been so rare and mainly incompetent that most of us are in more danger of falling of a ladder, he had the wit to reply that there was a broader ‘insurgency’ underway. It was manifest not only in violent militancy (silly me), but in the eccentric opinions of teenagers in chat-rooms getting excited about a Caliphate, and even in the demands of some folk for Sharia Law. He had expanded insurgency to encompass the holding of any subversive idea. A touch authoritarian, perhaps. When I asked him whether the Archbishop of Canterbury was an insurgent because of his mild belief in some kind of legal pluralism in the UK, the verdict was that he was a ‘useful idiot.’ A professional expert on insurgency finding insurgencies everywhere? Follow the money.

3.  On the death celebrations: I can’t agree with some folk here that the celebrations mark some kind of fundamental and scary brutalising of American civic life, like torture did, for example. Most folk haven’t taken to the streets to join in the party. Bin Laden declared war on the US and killed thousands of Americans, and if it is unappetising or unsavoury that some people have celebrated a little loudly, that is surely forgivable. Revenge and reprisal is part of our human condition, no matter how much we sublimate it into concepts like ‘justice’, even if we should work harder to civilise that urge. That terrorism against us is partly caused by the longing for vengeance because of ‘legitimate grievances’ is something academics argue for and sometimes sympathise with. Surely the fact that we might respond emotionally and vulgarly because of our legitimate grievances too deserves some sympathy?  In most societies across space and time, the news that a murderous enemy of the state has been killed is an occasion to be glad, even to rejoice. To condemn Americans, or Britons, or Westerners for failing to be exceptional and infinitely merciful and dignified is to apply a fictitious and narcissistic standard. Men and women are not angels.

4. I do hope the Obama Administration ends up revealing a photo of some kind. Rumours over the next ten years that Osama is somewhere in a retirement home playing backgammon with Elvis could be too much to take.

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New Executive Order on Detainees: Guantana-No, but action on the 1977 Additional Protocols (kinda)

Not so much.

Lawfare blog has a post on today’s Executive Order on Guantanamo Bay. (Link to the Obama administration’s fact sheet PDF here). Lawfare tends to be more conservative than most international law blogs, but it’s excellent and an absolute must-read for keeping up-to-date on all things law, national security and the war on terror. (Or as I like to call it, Saturday night!) There’s some good commentary on the refusal of Congress to help fund any progress on Guantanamo and some discussion of the return to military commissions.

More interesting for me is the section at the end of the Fact Sheet titled, “Support for a Strong International Legal Framework”. In it, the administration is basically stating that it is going to push for ratification of the 1977 Additional Protocol II to the 1949 Geneva Conventions and that it formally sees Article 75 of Additional Protocol I as customary international law. (Article 75 lists the “fundamental guarantees” in the Protocol for those “persons in the power of a party to a conflict”.)

The section says:

Because of the vital importance of the rule of law to the effectiveness and legitimacy of our national security policy, the Administration is announcing our support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions.
Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict.
Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported.
Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

My first quick thoughts on this are that this is a big deal and not a big deal.

The United States has signed, but not ratified, the two Additional Protocols. In the 1980s political appointee lawyers, such as Doug Feith (who declared the Protocols to be “law in the service of terror”) worked to undermine efforts to have the US ratify them. (Although, to be fair, this was a position that was supported by the New York Times during this period.) They were successful, and in 1987 President Reagan declared to the Senate that he would not send API to them for ratification, but that he would send (the much more limited) APII through. However, the Protocol has been languishing there ever since.

So in some ways, this can actually be seen as fulfilling an old Reagan administration policy.

However, I think the clear and strong support for Article 75 is important, and will probably be welcomed by many in the international legal community, perhaps at least as a small comfort for the general sense of disappointment that Guantanamo is still around.

Also, while I feel it is a good thing that the administration has formally declared Article 75 to be customary, I think this may be bad news for API advocates overall. The policy is likely a result of the fact that the administration believes that ratification of Additional Protocol I is still a long way off – particularly with Congress’ attitude towards international law, Guantanamo and the war on terror. Additionally, the fact that the administration states (not entirely unreasonably) that it has “significant concerns” over Protocol I (no doubt related to the controversial provisions in Aricles 1(4) and 44(3))  suggests that the overall sentiment towards API has not really changed that much.

Finally, and related to the above point, I would argue that this “fact sheet” seems to confirm a pragmatic Obama policy of trying to work with international law within the constraints imposed by a hostile Congress. While it may not be able to ratify all of the treaties that it (and many in the international legal community) would (probably) like to, it will seek to at least cooperate and work with the international legal institutions and regimes where possible.

QUICK UPDATE – The always interesting and occasionally controversial Ben Wittes gives his take on it here. Short version: Good policy, but too bad that the President and Congress can’t work it out.

QUICK UPDATE 2: (Geeze this is moving quick!) State Department statement on these developments here.

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Cause and Effect in the “War on Terror?”

 It is impossible to know at this point whether there is any connection between these two disturbing events reported yesterday:  NATO forces’ mistaken killing of nine boys gathering firewood in Afghanistan; and, a few hours later, the killing of two American soldiers at Frankfurt airport, apparently by a Muslim man of Kosovar origin.   We do know that other terror suspects have stated that they acted in response to U.S. policies in the GWOT, in particular the frequent killings of innocent civilians in Afghanistan, Iraq, and elsewhere.  It would therefore not be surprising if this were true in the German case.  And it is at least possible that the impetus was in fact the horrific NATO shootings in Afghanistan just hours before.  

This raises yet again the question of what is cause and what effect in the “war on terror.”  Are American policies, which predictably result in large numbers of civilian casualties no matter how great the military’s precautions, in fact reducing the number of terrorists?  Do our heartfelt apologies in the wake of such wholly foreseeable errors in fact have any effect on the families of the victims, let alone on the small number of angry and extreme–but not yet violent Muslims–elsewhere in the world?  The answer seems likely to be, No.  The GWOT is a self-perpetuating policy that increases the amount of terrorism in the world, even as it enriches military establishments, COIN bureaucracies, and all manner of private suppliers of questionable anti-terror services and technologies.  (Read the prior article–an amazingly depressing story of yet more waste, fraud, and gullibility in the GWOT.)
My question for Duck readers is:  How does such folly come to an end?  On the surface, when cause becomes effect, there would seem ample, rational basis to change policies.  And there have been any number of additional reasons to halt it recently too:  the obvious marginality of al-Qaeda in the massive popular upheavals that have rocked the Middle East and North Africa; recent statements by American officials that the number of al-Qaeda fighters is vanishingly small; Robert Gates’s tacit admission last week that the Afghanistan and Iraq wars should never have been fought; and reports that the military is propagandizing U.S. politicians and thereby citizens to believe that the wars are succeeding.  (This article too is worth a full read to see both how some in the military confuse the “mission” with their own ambition–and, a ray of hope, how others sometimes stand up against them). 
Any suggestions from Duck readers about literature on this kind of conundrum?  How are senseless but self-perpetuating policies, backed by hugely vested interests, ever brought to a halt?

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The “drug war” is over?

Over the years, the so-called global “war on terror” (or “war on terrorism”) has had its ups and downs as a foreign policy framing device. The George W. Bush administration, of course, relied upon the frame to sell virtually all its major foreign policies over a period of many years — even though the Pentagon at one point preferred “struggle against violent extremists.” Britain stopped using the phrase some years ago (at least in the Labor government).

Barack Obama’s administration allegedly abandoned the phrase very early in his term — in favor of alternatives like “overseas contingency operations.” However, with a little searching, it’s not difficult to find official spokespersons (like Robert Gibbs)  — or even the President himself — continuing to use those words after announcing that they wouldn’t.

Somehow, I missed the Obama administration’s similar early announcement that it was also going to stop using the phrase “war on drugs.” The Wall Street Journal reported this story May 14, 2009:

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting “a war on drugs,” a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

In his first interview since being confirmed to head the White House Office of National Drug Control Policy, Gil Kerlikowske said Wednesday the bellicose analogy was a barrier to dealing with the nation’s drug issues.

“Regardless of how you try to explain to people it’s a ‘war on drugs’ or a ‘war on a product,’ people see a war as a war on them,” he said. “We’re not at war with people in this country.”

We haven’t discussed the “war on drugs” very much here at the Duck of Minerva, but it has long had a significant effect on public policy — especially domestic policy as recently demonstrated in a drug-themed issue of The Nation. This is an excellent summary of the costs from Ohio State Law Professor Michelle Alexander’s piece in that issue:

More than 30 million people have been arrested since 1982, when President Reagan turned Nixon’s rhetorical “war against drugs” into a literal war against poor people of color. During the past few decades, African-American men, in particular, have been arrested at stunning rates, primarily for nonviolent, relatively minor drug offenses—despite data indicating that people of all races use and sell drugs at remarkably similar rates. In some states, 80 to 90 percent of all drug offenders admitted to prison have been African-American, and when released they find themselves ushered into a parallel universe where they are stripped of many of the rights supposedly won during the civil rights movement. People labeled felons are often denied the right to vote and legally discriminated against in employment, housing, access to education and public benefits—relegated to a second-class status for life simply because they were once caught with drugs.

She put the economic cost of the war at “more than $1 trillion in the past few decades.”

Clearly, America’s “carceral state,” which Charli recently mentioned, reflects the outcome of the drug war. Of course “contact with the criminal justice system” is going to be a “significant predictor of civic and political disengagement and mistrust of government.” Felons are frequently denied the freedom to vote.

I recall more than 20 years ago thinking about writing a rhetorical analysis about George H.W. Bush’s use of the phrase “war on drugs” to rally support for his domestic and foreign initiatives. But I didn’t. The cold war was still raging, my dissertation concerned strategic defense — and I needed to find a tenure track job. Members of the IR Copenhagen School have long discussed the securitization of this issue, but few American IR scholars have taken it very seriously — even when it occasionally spilled over into “hot” rather than merely metaphorical war.

The Obama administration doesn’t use the phrase “war on terror,” but has escalated American intervention in Afghanistan and Pakistan. The “war in Iraq” has ended, but 50,000 American troops remain to help provide security.

I suspect the decision to stop using the phrase “war on drug” will have similar policy consequences. Indeed, that recent issue of The Nation demonstrates the continued failings of U.S. policy in this area.

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Wikileaks “Document Dumps” vs. Government Secrecy Dumps

The Wikileaks releases are political dynamite not just because of the specific issues they discuss.  Also, and more importantly, they challenge a dominant mode of foreign policymaking in the U.S. and many other countries:  government secrecy dumps—routinely stamping vast amounts of information “top secret,” thereby placing it beyond the eyes of all us “untrustworthy” citizens.  For this reason alone, the Wikileaks releases are important—and important for us to continue discussing on this blog.

To take a minor issue first, pooh-poohing the releases as “nothing new” is misplaced.  This is obvious from the facts that the releases have dominated headlines worldwide for days, that authoritarian governments have tried to keep their publics from seeing any of them, and that democracies like our own seem to be trying to do the same.  (Recently, for instance, I could not access Wikileaks from its U.S. site, although it was easy enough to do so from a European one.)  At a minimum, we are getting a detailed look at diplomats’ interpretations of events and relationships that most of us knew about only in broadest stroke.  That is very worthwhile—and in any case, there is in fact lots that really is new too.

What about the alleged harm to America’s security and diplomacy that the Wikileaks releases will supposedly cause?  I am doubtful about this assertion, as I’ve written before.  This is not just because even government officials–with the most interest in claiming harms–have admitted that there have not been any (even while darkly intimating that they are coming).  It is primarily because I believe far too much of our foreign policy–as well as too much of our domestic policy–is now conducted behind veils of secrecy that make it difficult if not impossible for citizens to know what is being done in our names.

Sure, it may be true that more information does not necessarily lead to better decisions or outcomes.  But less information, strategically released by one side to an issue (the government), is far worse.  A basic fact about organizations is that they work to expand their powers and to protect themselves, fervently covering up their own uncertainties, embarrassments, mistakes, and corruption.  This is of course true of governments too.  In an admittedly small way, Wikileaks challenges that tendency—and provides information that citizens, and hopefully at least some of their elected leaders, can use to upend it.  In that regard, kudos to Rep. Ron Paul for being one of the few politicians, Democrat or Republican, to make that point publicly!

In light of the huge and concrete harms that have actually occurred in significant part because of government secrecy, Wikileaks’ releases offer a helpful alternative, with so far only abstract and possible harms.  If recent decades of U.S. foreign policy teach us anything, it is that the government and the military sometimes tell the truth–but also sometimes color the facts for their own purposes—sometimes make stupid mistakes–and sometimes lie to the American populace.  Those errors and lies cost huge amounts in money and lives.  The Tonkin Gulf incident, the build-up to the Iraq War, continuing incidents in Afghanistan—these are only the more egregious and costly cases of numerous others in recent decades.

In other words, the current regime of government secrecy dumps has not worked.  In that circumstance, I am open to trying a regime of substantially greater transparency–and think it would likely result in better decisionmaking.  Unsurprisingly, our politicians are unwilling to take such an approach.  They benefit too much from the lack of accountability it permits.  On the contrary, in recent years, they have vastly enlarged Top Secret America and hugely expanded their surveillance of ordinary Americans, all in the name of “security.”

In that circumstance, we are left with the press–some of which has remained skeptical and objective, but much of which has adopted cozy relationships with power—and has often cheer-leaded government policy and even secrecy.  That leaves us with various NGOs that try to improve government transparency, like the National Security Archive and Wikileaks.

The Wikileaks releases contain information that I as a U.S. citizen have a right to know.  After all, this is the government I support through my tax dollars and vote for in elections.   The cables document the extent to which current policies have failed, in ways that the government seldom admits to its own people.  To take just two examples: our “allies” in the Middle East failing to stop funding for terrorists, as today’s New York Times reports; and the despair of ground-level American officials about the epidemic corruption in our ally, Afghanistan.

Why should I have to wait for some government bureaucrat to perhaps declassify these materials decades from now—or possibly never?  Why is it wrong for me to know in detail about the ways in which my tax dollars and my government are operating?  Why should we not have more complete and accurate information, allowing us to check claims of government officials, before we spend trillions of dollars and take hundreds of thousands of lives in our wars?

The argument that we should wait 10 or 20 or 50 years so that serious academics can give us a full explanation of today’s events elevates scholarship over policy.  It also naively assumes we can trust our officials to release an objective account of events, even decades later.  I seriously doubt that.  

Of course, there is a need for secrecy in some cases.  The classic one:  troop movements in the midst of a war—or delicate diplomatic negotiations in real time.  The interesting thing, however, is the extent to which government officials strategically use leaks themselves to advance their positions in many situations.  Exhibit A:  the buildup to the Iraq War.  And again, those who should provide some check on the politicians, instead often act as mouthpieces for government positions.  Exhibit B:  Judith Miller of the New York Times.

The argument that most Americans don’t pay attention to foreign policy issues may be true.  But so what?  Even if true, and only a small foreign policy elite in government, academia, and the media pays attention most of the time, I think it is worthwhile to have Wikileaks-style material available, if only for them—so that they can more easily awaken the American public to the folly of so many of our policies.  More generally, if we had less secrecy about the trillions of dollars being wasted in places like Iraq and Afghanistan vs. the actual risks posed to us there, many more Americans might become interested—and disgusted enough to mobilize against our security policy rat-hole.

As for the claim that Wikileaks is engaging in a deplorable “document dump,” the reality is that this release is being done slowly, in coordination with major media around the globe.  And Wikileaks has improved its ways of doing so, in particular redacting names.  I’m all in favor of targeted releases of information on specific instances of hidden criminality or waste, of course.  But the reality is that there is a wealth of other matters that governments do that are not “criminal” or “corrupt”–but that citizens should know about to gain a fuller picture of what their politicians, bureaucrats, and soldiers are doing in our names and with our money.  In that respect, even if Wikileaks were simply “dumping” large numbers of documents, this would pale by comparison to the government’s security dumps.

Some have written that they fear these releases will simply drive more governmental communications into oral form, resulting in worse decisionmaking and less information in real time.  This is of course speculative—so let me add my own speculation.  The instinct to “cover your ass” is one of the most common in any organization.  I am confident that, up and down the chain of command, government functionaries will be reluctant to take questionable actions without written authorization, if for no other reason than CYA.  

The “torture memorandums” in the Bush administration offer a prime example.  One reason for their preparation and approval at the highest levels was to reassure government officials who would actually do the dirty work that they would not be prosecuted.  Without such written support, the possibility of prosecution would probably have deterred many from taking such dubious actions.

Will foreign officials be more reluctant to speak to American diplomats off the record—or, worse yet, stop inviting them to their cocktail parties and weddings?   Again, I doubt it.  Those officials invariably have ulterior motives for speaking or socializing with a superpower.   To think that they will cut us off in the future is shortsighted.  To think that they have always been candid with our diplomats in the past is naïve.  To continue with the secrecy that has enveloped these kinds of contacts in the past is perverse.   

If anything, we need more openness to avoid the costly missteps that crafty foreign leaders have manipulated us into in the past, due in part to our own misjudgment and credulity.  The possibility of disclosures could in fact make our diplomats think twice about what they are seeing and being told overseas.  If anything, we need more of that, given the gullibility and group-think of military and governmental officialdom.  Exhibit C:  Iraqi National Congress leader, Ahmed Chalabi; Exhibit D: Mullah Akhtar Muhammad Mansour, the “Taliban leader” with whom we “negotiated” this year, to the tune of untold American dollars—before discovering him to be a fraud.

Will the State Department instruct employees to be less blunt in their assessments of democratic  leaders, for fear of offending their tender sensibilities, if the info ever came out?  Please.  These are all adults engaged in politics, not children in a pre-school class.  Democratic leaders are used to being called names by their own countrymen.  If they don’t have thick skins, they have no business being in their offices.

As for hurting the feelings of various despots around the world, some of them admittedly “our” despots, I say, Good.  In any case, someone like Yemen’s President Ali Abdullah Saleh, or anyone savvy enough to get the world’s only superpower to do his bidding, is not going to be fooled into thinking that a diplomat’s smile and handshake represent his real feelings.  Nor is he going to be shocked to find himself described in frank terms to American officials.

All that said, I have little doubt that “patriotic” government officials are already scrambling to come up with new ways to secure their vast secrecy dumps from (horrors!) the American people.  Joe Lieberman is already demonstrating the bluntest and most questionable ways in which our “public servants” are doing that.  But I am doubtful that the secrecy regime can be much more severe than it is today—and hopeful that the Internet, combined with the occasional conscience-stricken government official, will keep things at least as open as they are now.

Who knows?  Unlikely as it seems, the disclosures and the debate might prompt more Americans to question our secrecy dumps.  That might even move some brave politicians to change current policies toward real transparency.

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Latest Data on Drone Casualties

A study published in the Jamestown Foundations’ Terrorism Monitor a few days ago claims it sheds “New Light on the Accuracy of the CIA’s Predator Drone Campaign in Pakistan.” (Never mind the fact that as civilians, CIA agents are not entitled to wage war and would have to be considered ‘unlawful combatants’ if brought to justice.)

The question addressed here is a simple but very important one from a jus in bello perspective: what is the proportion of civilian deaths to combatant deaths in such strikes? No one is actually keeping track, but the authors aim to develop a good estimate by extrapolating from both Western and Pakistani news sources. On this basis they conclude:

Widely-cited reports of the inaccuracy and disproportionality of civilian to militant deaths in the CIA’s ongoing Predator drone campaign against the Taliban and al-Qaeda in Pakistan are grossly misleading. The most detailed database compiled to date, assembled by the authors of this article, indicates (among other important findings) that the strikes have not only been impressively accurate, but have achieved and maintained a greater proportionality than either ground operations in the area or targeting campaigns elsewhere

Now, I haven’t studied their coding closely enough to understand how it enabled them to arrive at such wildly different conclusion than this study last year, which used a similar methodology; however simply by reading over the article itself I can already see three problems:

1) Their definition of ‘civilian’ excludes adult men and boys over the age of 13:

All children under 13 and women were assumed to be civilian, along with all of those specifically identified as civilians, bystanders or locals uninvolved in the fighting. Where it was impossible to determine whether a person killed was properly categorized as a suspected militant or civilian, we assigned them to the category of “unknowns.”

Numerous scholars, myself included, have shown how misleading it is to assume all women are civilians and all men and older boys are combatants; and to build this gendered stereotype into one’s dataset immediately prejudices the data in favor of finding fewer civilian deaths.

2) The authors are to be commended for using the label “suspected militants” rather than “militants” – too many right-of-center commentators assume that a terror suspect is in fact a terrorist, just as too many left-of-center commentators use the term “war criminal” to describe individuals who have never yet been convicted of a war crime. Yet these authors somehow fail to notice the ethical implication in the behaviors they are describing: the US is carrying out a mass murder campaign against individuals suspected of committed crimes, in the absence of any sort of effort to determine whether or not they are actually guilty. In short, what renders these individuals putative “legitimate targets” appears to be nothing more than the suspicions of those with their fingers on the trigger. Oh, and possessing testicles.

3) Now that said, the way that they have gone about exploring the concept of discrimination is very interesting: they have compared the ratio of civilian/”suspected militant” deaths with drone to equivalent ground operations by US troops, by Pakistani troops, and by Israel’s targeted killings campaign, and in inter-state wars historically. All of these are interesting and helpful comparisons. I’d be interested to see them replicated with data that properly coded “civilian” dead – which would need to involve a consideration of the context of each attack.

That said, strictly speaking the authors are measuring the concept of “distinction” or “discrimination,” not the concept of “proportionality.” The distinction principle measures the ability to hit combatants while minimizing the costs to civilians. Proportionality measures the overall good of an attack relative to its overall negative side-effects.

From a human security perspective, I would argue the appropriate measure for an analysis of proportionality would not be the number of civilian death to combatant deaths, but rather the number of civilian deaths by drone strikes to some estimate of the number of Pakistani civilians who will not now die as a result of militant activity.

I leave it to the number crunchers to figure out how to calculate this.

[cross-posted at Lawyers, Guns and Money]

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Undefended Buildings

I have been meaning for a few days to respond to this query on the law of land warfare posted recently at La Riposte:

Article 25 of the Hague Convention on the Law of Land Warfare states “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited” and violation of this article is listed as a War Crime under Article 8 of the Rome Statute of the International Criminal Court. Do American drone attacks on family compounds within Afghanistan and Pakistan, believed to be occupied by members of the Taliban violate Article 25?

It is difficult to imagine how such a building, located in a village full of civilians could be construed as being defended, especially against an unmanned aircraft flying 25,000 feet overhead. Adequate defense against such an attacker would have to consist of air-defense artillery or missiles with a sophisticated tracking system to locate and engage the small, quiet drones.

Let’s consider a couple of justifications that might possibly be made for what appears, on the surface, to be an egregious violation of the Laws of Land Warfare. First, someone might claim that the building wasn’t the target – it was only a particular person or persons inside the building who were the targets, and the nature of the structure they were occupying was immaterial. But using that logic, such persons could be legitimately targeted anywhere, including schools, mosques, hospitals, and any other building.

It’s also possible someone could claim that just because there were people in the house who possessed guns, the building was “defended.” Such an argument rings hollow on several counts. First, inhabitants of Pakistan’s tribal areas are allowed to have weapons, precisely for the defense of their persons and property. Second, simply because the occupant of a building has a weapon, it doesn’t mean they will use it defensively. If approached by military or police forces they may choose to run away, to surrender, or to fight. Only in the latter case would the building become a “defended” position and thus merit bombardment.

I have only two things to add to this analysis, with which I generally concur. The first is that the general prohibition in the original Hague Conventions, reiterated in the Rome Statute, is also given more nuance by Articles 48-57 of the First Additional Protocol to the Geneva Conventions of 1977. Some of the treaty law relevant to this question includes:From Article 48:

The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.

From Article 49, which among other things suggests these rules probably apply not only in Afghanistan but also in Pakistan, Yemen and elsewhere in this “globalized” “war”:

“The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party.”

Article 51 spells out more closely the definition of “civilians,” but in terms of the question asked by E. about dwellings, it is the definition of “civilian objects” that really matters, and that is in Article 52:

para. 1: Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

para. 2: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

para. 3: In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Finally, Article 57 outlines precautions to be taken prior to attacks, specifically those:

with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects

Now note that the precautions to be taken are those to avoid civilian deaths rather than injury to one’s own forces, which suggests to me that the use of unmanned craft at all in situations such as these is particularly galling, since part of the key purpose of drones, and air power in general, is the minimization of harm to our ground forces.

Now here’s the catch, however. The United States is not a party to the Additional Protocol I, so in international law terms the question of whether the US must adhere to these rules remains open. One argument sometimes made is that these rules are accepted by so many states they have the status of binding customary law. The International Committee of the Red Cross has in fact, has made this claim; though others such as David McGrogan demur.

One way to look at this, however, is that AP1 constitutes not a set of new rules but rather a widely recognized clarification of the general prohibition in the original Hague treaty (to which the US is a party) and that therefore it is reasonable to assume that the US ought to be following these guidelines if it means to conform to Hague rules.

My final comment on this query, however, is to say that the key ethical concerns here are not really about drones per se, but about the use of air power at all in civilian areas where the goal is simply to pick off a small number of specific individuals.

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Three Cheers for Wikileaks

The last few days have seen a fury of debate about Wikileaks’ latest disclosures.   To my mind, Wikileaks’ release of the Iraq and earlier Afghanistan documents is a public service—throwing critical light on the way in which America has pursued its wars at ground level.  


Some have dismissed the documents as nothing “new.”    Of course, it is true that we have had information about the wars, human rights violations, and civilian casualties in everyday stories by the media.  But much of that, among reporters “embedded” by the military, has been carefully screened.  Moreover, what has been written is also of course filtered through the eyes of journalists, with their own biases.  
I think it is extremely useful for the public to have the opportunity to see ordinary soldiers’ day-to-day experience of the wars in any number of incidents that have not in fact received attention.  This in my view makes the information “new”—and clearly worthwhile.   That is why the world’s headlines over the last few days have been full of stories about civilian casualties, torture, and the role of military contractors–based on the Wikileaks disclosures.  
As to the argument that the releases put civilians and soldiers at risk,

I of course believe those risks should be minimized.  It certainly cannot be denied that these documents could put some civilian informants in the two countries “at risk”—or more precisely at greater risk than they have already placed themselves.  And, as Charli Carpenter and others have argued previously, it does seem that Wikileaks might have done more to reduce that risk, particularly in the Afghanistan release.  But it is probably impossible to eliminate the risk of harm—other than not to have released the documents in the first place.  With regard to the actual level of risk from the Afghanistan disclosure, however, we do have some information.  Secretary of Defense Robert Gates, hardly someone to underestimate the peril, wrote in August that the Pentagon’s “review to date has not revealed any sensitive intelligence sources and methods compromised by the disclosure.”   Days ago, CNN also reported that “a senior NATO official in Kabul told [the network] there has not been a single case of Afghans needing protection or to be moved because of the leak.” (h/t Vikash Yadav)

Charli’s older idea that Wikileaks should do targeted document releases of potential war crimes may have some merit–but such an approach would essentially turn Wikileaks into a human rights NGO.  Admittedly, the world could use more of them, particularly in war zones.   But I see no value in Wikileaks transforming itself into something it is not, nor do I see anything wrong with Wikileaks’ continuing the mass data releases that it specializes in, albeit with some enhanced protections that it appears to be implementing already. 
Nor do I have a problem with lack of transparency about the organization’s internal operations—or, if you will, a lack of symmetry with its efforts to illuminate government activities.  Wikileaks, as a private entity, is under no obligation to disclose its internal operations, funding, and decisionmaking, beyond that required by law of other private concerns.  As a matter of organizational strategy, I would argue for Wikileaks to tell more—because failing to do so raises legitimate questions about the group.  But I would not dismiss its activities or discount its disclosures for this reason.  Nor would I focus attention on this side issue, rather than the main one–the information’s substance.
By contrast, democratic governments do have an obligation to disclose information to their citizens, except in rare and particular circumstances.  Yet from the U.S. to South Africa, governments’ knee jerk approach, especially when officials solemnly intone the magic word “security,”  is exactly the opposite–with dire costs to citizens who are paying the bills and soldiers who are doing the dying.
In any case, all of the worry about Wikileaks possibly putting civilians and soldiers at risk must be placed in context.  The Afghanistan and Iraq wars, which the U.S. started with so little justification and so little vision, have put millions of civilians and soldiers at actual risk.  Of course, it is far worse than “risk.”  Hundreds of thousands of Afghans and Iraqi civilians have actually died as a result of our wars, with far larger numbers gravely wounded.  Thousands of American soldiers have actually been killed, and tens of thousands have had their lives shattered by injuries.  
The wars have also put our nation as a whole at greater “risk”—although it is critical to realize that the danger to individual Americans and certainly to our “national security” remains small and easily manageable.  Certainly, it does not justify the vast and wasteful expenditures we are making in the “GWOT.”  (This does not even take into account the huge direct and indirect monetary costs of the wars—or the costs in civil liberties eroded.)
A major reason that the Bush administration was able to start these wars was lack of information.  The evidentiary “basis” for them—and certainly against them–was not fully analyzed, the rationale for them not fully debated, and the exit strategies not wisely considered.  In this, many of our key “watchdogs”—journalists, “opposition” politicians, and academics—blindly bought the Bush administration’s line on the “threat.”  More information does not of course mean that misguided politicians will avoid doing stupid things.  Nor does it stop journalists from becoming handmaidens of power. But it probably makes it more difficult for these things to happen.  
In this context, the more information we have today about these misbegotten wars, the better.  In the past, much of what we have had came from government or military sources, with a clear incentive to paint a rosy or incomplete picture.   Journalists often ignored their obligation to be skeptical of officialdom.  A vast “top security” industry has grown up in the wake of these wars, full of private contractors and government employees only too happy to keep information from the public.  Because of the Pentagon’s strategic decision not to report civilian casualties, the human costs to the Iraqi and Afghan people can be found only through third parties.  Through clever accounting practices, the government has been able to hide and postpone payment of the war’s monetary costs.  And because of our volunteer army, the human costs to Americans have been confined to a tiny minority of our population.  
In other words, these wars have been conducted with the American people—who pay their costs and in whose name they were started—very much in the dark.  The mantra from our leaders is, “Trust us.”  And the furious response to the disclosures is to attack Wikileaks and, most pathetically, Julian Assange–for his personal life. 
Wikileaks is fighting against this self-servingly secretive mindset and may help bring these wars to an end sooner.  In that, the group will help our country be stronger, more secure, and more responsible.  I applaud the disclosures! 
I also recommend Steve Walt’s blog and especially Glenn Greenwald’s recent posts which get to the heart of the story:  what Wikileaks is doing; and how it is being attacked by government officials and much of the U.S. (but not foreign) press.
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The Latest in Mole Whacking

Yesterday, the New York Times had a story about huge proposed increases in military assistance to Yemen, framed around the “war on terror.” Since the Christmas day 2009 attempted airliner bombing that was linked to Yemen, the U.S. was allocated about $155 million in military aid for FY 2010 — up from about $5 million in FY 2006.

The Pentagon’s latest plan calls for $1.2 billion in the next six years, about $200 million annually. That’s nearly a 25% increase from 2010 and an enormous change in commitment over a short period of time.

Apparently, by comparison, Aghanistan is so 2009:

“Yemen is the most dangerous place,” said Representative Jane Harman, a senior California Democrat on the House Homeland Security Committee who visited Yemen in March. “We’re much more likely to be attacked in the U.S. by someone inspired by, or trained by, people in Yemen than anything that comes out of Afghanistan.”

Since the Pentagon claims that there are only about 100 al Qaeda personnel in Afghanistan, this quote may well be literally true.

Of course, Harman says nothing about Pakistan, which has for some time been the real ground zero in the war on terrorism. The unpopular drone strikes demonstrate how that part of the AfPak war is being fought.

Those of us who have some doubts about the ability of military force to fight terrrorism (and achieve other foreign policy objectives) will be relieved to read this paragraph:

Daniel Benjamin, the State Department’s counterterrorism coordinator, said in a policy talk last week that American-backed assaults by Yemeni forces on Al Qaeda may “deny it the time and space it needs to organize, plan and train for operations.” But in the long term, he added, countering extremism in Yemen “must involve the development of credible institutions that can deliver real economic and social progress.”

There is another big problem with the Pentagon’s plan — Yemen’s relative disinterest in the mission:

Gregory Johnsen, a Yemen scholar at Princeton…said the priorities of President Saleh, an autocrat whose family has ruled [Yemen] for three decades, do not coincide with those of the United States.

“If we’re just pouring money and equipment into the Yemeni military in the hopes that it will be used against Al Qaeda,” Mr. Johnsen said, “that hope doesn’t match either with history or current reality.”

The whack-a-mole metaphor has been widely used by critics of U.S. foreign policy — to describe outcomes in both Afghanistan and Iraq.

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UK Torture Inquiry: Our BFD?


The coalition government here in the UK has announced that there will be an inquiry into torture and rendition alleged to have been carried out since 9/11. This was a major item platform for the LibDems and some Tories, the latter group while conservative, committed to a deep sense of eroding “British values”.

It’s early days, and we do not know what such a commission would look like, but if this Guardian article is correct, individuals will be named and shamed:

The judicial inquiry announced by the foreign secretary into Britain’s role in torture and rendition since September 2001 is poised to shed extraordinary light on one of the darkest episodes in the country’s recent history.
It is expected to expose not only details of the activities of the security and intelligence officials alleged to have colluded in torture since 9/11, but also the identities of the senior figures in government who authorised those activities.

This is – to put it in Biden terms – a BFD.

Some early thoughts:

First, there is no doubt some of the motivation here is for the other two parties to really stick it to Labour. But to be honest, it’s nothing that they haven’t brought onto themselves if the Inquiry does find that then-senior Labour MPs/Cabinet ministers knew they were acting illegally.

So, provided the allegations can be substantiated (I’m guessing at least some will), the bigger question will be if these individuals justified, in any way, of making the decisions they did, under the circumstances. (The Michael Walzer/Dirty Hands approach). Human Rights lobby groups are probably going to give a definite “no” to this but it will be interesting to see what an inquiry will say.

Any individual named by a commission would have a very difficult time traveling around the rest of the Western world, particularly Europe, for a very long time. While the commission would not in and of itself be a trial (it seems to be framed as an accountability mechanism more or less) it could lead to formal charges elsewhere. The UK is, after all, party to the ICC.

Finally, for relatively obvious reasons, I can’t see this happening in the US. Yet it seems clear that the decisions of US decision makers, and their impact on UK decision makers, is going to come to light. Like the Iraq Inquiry, a UK commission will effectively be putting US policy on trial.

However, I can’t see something like this happening in other countries like Canada either – where there is a good chance that senior government ministers in both political parties made decisions that contravened the CAT or their own domestic laws. Although, to be fair, the Canadian government at least held a commission as to why a citizen was permitted to be rendered to Egypt for torture and the Canadian government officially apologized. No official was ever held accountable.

Stay tuned…
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Is there a legal obligation to report war casualties?

This year at ISA a theme which seemed to crop up again and again (at least among the laws of war crowd – we’re small but mighty) was the idea that “we” (international society, academia, NGOs, I guess) need more information on civilian casualties, particularly those caused by air strikes in Pakistan and Afghanistan. There was a real sense of frustration that the US was not more forthcoming on casualties, who was being targeted and who died.

Certainly, arguments were provided that there was a moral duty to provide such information. Although democracies may fight very deadly wars, constituencies within them want and demand to know exactly who we are fighting and why and with what means.

But is there a legal obligation to do so? The idea that the US (the CIA specifically) is fighting a shadowy war in Pakistan using unmanned aerial vehicles (UAVs) has lead to allegations of civilian atrocities and war crimes. No one seems to be able to provide an accurate count. (And I struggle to find a reliable one on the internet.)

But must the US actually provide information as to who it has targeted and who has died under the laws of war?

I can find no straightforward obligation in the laws of war which states that governments must report casualties in an armed conflict. They must report all prisoners taken (GC III, Art 70, 122) and their deaths (GC III Arts 120, 122). But the laws governing the death of civilians and combatants (legal and unlawful) in operations is much less clear. Most civilian protections are from the Hague Conventions (which did not envision Predator UAV strikes, although the idea of Aerial Warfare was not entirely foreign) and Additional Protocol I (which, of course the US has signed, but not ratified.)

While, Governments are required to take precautions in attack, operate in a proportional manner and to make efforts to avoid disproportionate damage, there is little in which to enforce or hold states accountable because there is no requirement to provide information.

Does this requirement to be proportional and discriminate then implicitly oblige states to provide information to demonstrate that they have been acting in accordance with the laws of war?


This was the argument of Philip Alston, United Nations special rapporteur on extrajudicial, summary or arbitrary executions and NYU Professor and … who has argued with Hina Shamsi:

Used without fanfare in remote and inaccessible areas, they are invisible to all but their potential victims. The military advantages are obvious, but so too are the potential rule-of-law problems. Unless governments voluntarily disclose information, human rights monitors and independent journalists are unable to verify claims that there are limited or no civilian casualties, let alone to weigh them against credible reports that hundreds of innocents have died…

Accountability is an independent requirement of international law. When complete secrecy prevails, it is negated. Secrecy also provides incentives to push the margins in problematic ways.


Yet Alston does not cite any specific legal obligation other than to invoke these principles that are, it is fair to say, less than straightforward and do not provide any specific guidance. Indeed, later on in the article, it seems that the real “beef” that Alston has is the dehumanized process employed by a generation reared on Call of Duty.

Equally discomfiting is the “PlayStation mentality” that surrounds drone killings. Young military personnel raised on a diet of video games now kill real people remotely using joysticks.

Morally, Alston may have a point, but I am not convinced that he has legally demonstrated his case. Things that are “discomforting” are not necessarily illegal.

It is fair to say that the US position is that no such obligation exists. In searching for an answer to this question, I contacted a lawyer friend at DoD in a position to know about these things. The response I received made it was clear that they do not believe that they are under any such obligation for several reasons.


First, reporting on friendly casualties may provide too much intelligence to enemies on the effects of their actions. (ie: that they are being effective).

Secondly, reporting on enemy casualties is not without moral risks. The US was criticised (and “rightfully so”, my friend added) for excessive reporting of enemy casualties in Vietnam. The policy of “body count” was used to demonstrate that the US was winning the war but lead to rather more tragic consequences. This was the position taken by General Tommy Franks in Afghanistan when he told reporters “We don’t do body count.” Franks was not saying that the US military didn’t care – but rather that he did not want to repeat the same mistakes that had been made in Vietnam.

Finally, on civilians, there seems to be the problem of knowledge. That while an attacker can (and must) make an estimate as to how many civilians might be killed in its proportionality calculation. However, there is simply no way to confirm reliably the number of deaths or to know whether any casualties were “directly participating in hostilities” (Which, the US tends to regard very differently from the ICRC these days.) Whether this problematizes the fact that they were targeted in the first place is up to the reader to decide.

So any reporting on casualties is not being done under any belief that there is a legal obligation to do so.

I’m sure the advocates for more information did not exactly have “body count” in mind when they demand more information and accountability. But this does raise an interesting point – that casualty reporting may also be used for other, more sinister purposes.


Am I missing something here? Can anyone point to an item of law which suggests that there is an obligation to do so?

I would like to stress that I am not conflating legality and morality here. The trick about the laws of war is that it lets you do a lot of really nasty things to a lot of people legally – let’s not kid ourselves. But if there is a claim that there is a legal obligation to provide information, I’ve yet to see it.

The only thought that comes to my mind is that the strikes in Pakistan do not amount to an “armed conflict” and therefore a human rights framework (which has much stronger accountability mechanisms) applies rather than the laws of war… but I think this needs to be the subject of a different post…

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Overseas contingency operations

Two months ago — before the Inaugural — I blogged “The ‘war on terror’ is over.” At that time, the British Foreign Secretary said that the UK no longer used the phrase.

Now, apparently, the US will stop using the phrase as well:

The Obama administration appears to be backing away from the phrase “global war on terror,” a signature rhetorical legacy of its predecessor.

In a memo e-mailed this week to Pentagon staff members, the Defense Department’s office of security review noted that “this administration prefers to avoid using the term ‘Long War’ or ‘Global War on Terror’ [GWOT.] Please use ‘Overseas Contingency Operation.’ ”

The Washington Post story quotes some government officials who seem to be less-than-certain that this shift in rhetoric has occurred.

On February 16, a report issued by the International Commission of Jurists recommended that the US and other states back off of their war on terror. This is from their press release:

The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, established by the International Commission of Jurists (ICJ), has based its report “Assessing Damage, Urging Action” on sixteen hearings covering more than forty countries in all regions of the world.

“In the course of this inquiry, we have been shocked by the extent of the damage done over the past seven years by excessive or abusive counter-terrorism measures in a wide range of countries around the world. Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights. The result is a serious threat to the integrity of the international human rights legal framework,” said Justice Arthur Chaskalson, the Chair of the Panel, former Chief Justice of South Africa and first President of the South African Constitutional Court…

The report calls for the rejection of the “war on terror” paradigm and for a full repudiation of the policies grounded in it. It emphasises that criminal justice systems, not secret intelligence, should be at the heart of the legal response to terrorism.

Plenty of domestic critics have critized the framework as well:

“Declaring war on a method of violence was like declaring war on amphibious warfare,” said Jeffrey Record, a strategy expert at the US military’s Air War College in Alabama.

“Also, it suggested that there was a military solution, and that we were at war with all practitioners of terrorism, whether they threatened American interests or not. ‘War’ is very much overused here in the United States – on crime, drugs, poverty. Everything has to be a war. We would have been much smarter to approach terrorism as the Europeans do, as a criminal activity.”

Anyone interested in Dan’s work on empire would also want to note that the “war on terror” framing made it easier for America’s disparate foes to work together. From the Post story quoted up-top:

John A. Nagl, the former Army officer who helped write the military’s latest counterinsurgency field manual, said the phrase “was enormously unfortunate because I think it pulled together disparate organizations and insurgencies.”

“Our strategy should be to divide and conquer rather than make of enemies more than they are,” said Nagl, now president of the Center for a New American Security, a defense policy think tank in Washington. “We are facing a number of different insurgencies around the globe — some have local causes, some of them are transnational. Viewing them all through one lens distorts the picture and magnifies the enemy.”

Search the Duck archives, and you’ll find ZERO uses of the phrase in the title of this post. I wonder how much that will change in the next four years?

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Volleys in the war on terror

Barack Obama may not have formally ended the war on terrorism, but he’s certainly making dramatic changes in the way it is prosecuted. From Spencer Ackerman this morning:

take a look at his first not-even-48 hours in office. He’s suspended the Guantanamo Bay military commissions, a first step toward shuttering the entire detention complex. He’s assembled his military commanders to discuss troop withdrawals from Iraq. He’s issued a far-reaching order on transparency in his administration that mandates, among other things, a two-year ban on any ex-lobbyists working on issues they lobbied for. And now he’s shutting down the CIA’s off-the-books detention complexes in the war on terrorism.

That’s a remarkable start. A bit later in that post, Ackerman mentions that the CIA will also have to start complying with the Army’s revised Field Manual (which is compliant with the Geneva Conventions) when interrogating terror suspects.

To the likely approval of UK Foreign Minister David Miliband, these moves “uphold our commitments to human rights and civil liberties both at home and abroad.” They also de-emphasize the military dimension of the conflict and begin to disentangle disparate foes previously lumped together as terrorists.

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The “war on terror” is over

British Foreign Secretary David Miliband says “for a couple of years now the British Government has used neither the idea nor the phrase ‘war on terror’.”

Miliband was in Mumbai, speaking (transcript here) at the recently targeted Taj Hotel. He made a number of points that new American leaders should embrace. For example, a “war on terror” creates an enemy that does not exist:

…ultimately, the notion is misleading and mistaken…The notion of a war on terror gave the impression of a unified, transnational enemy, embodied in the figure of Osama Bin Laden and the organization of Al Qaeda. In fact, as India has long known, the forces of violent extremism remain diverse. Terrorism is a deadly tactic, not an institution or an ideology

…The more we lump terrorist groups together and draw the battle lines as a simple binary struggle between moderates and extremists or good and evil, the more we play into the hands of those seeking to unify groups with little in common, and the more we magnify the sense of threat.

Moreover, fighting a “war” on terror militarizes a struggle that should be handled quite differently:

the phrase “war on terror” implied a belief that the correct response to the terrorist threat was primarily a military one: to track down and kill a hardcore of extremists. But as General Petraeus said to me and others in Iraq, the coalition there could not kill its way out of the problems of insurgency and civil strife.

…democracies must respond to terrorism by championing the rule of law, not subordinating it. If we want to promote the politics of consent instead of terror and of democratic opportunity rather than fear and oppression, we must uphold our commitments to human rights and civil liberties both at home and abroad.

Why didn’t the Bush administration heed this advice years ago? Many others were offering it — since September 2001, in fact.

Actually, back in summer 2005 the Bush team did briefly appear to abandon the “war” on terror or terrorism.

Donald Rumsfeld’s Pentagon, for instance, wanted to refer to the US policy as a “a global struggle against violent extremism” (G-SAVE). By dropping “war,” the administration could have somewhat de-militarized the conflict. As was noted at the time,

“Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, told the National Press Club on Monday that he had “objected to the use of the term ‘war on terrorism’ before, because if you call it a war, then you think of people in uniform as being the solution.”

The solution is “more diplomatic, more economic, more political than it is military,” Myers said.

At the time, as my blog post made clear, Karl Rove liked the “war” framing and President George W. Bush settled the issue before the end of the summer. Bush declared in August:

Make no mistake about it, we are at war. We’re at war with an enemy that attacked us on September the 11th, 2001. We’re at war against an enemy that, since that day, has continued to kill. They have killed in Madrid and Istanbul and Jakarta and Casablanca and Riyadh and Bali and London and elsewhere.

As Peter pointed out at the time, the “war on terror” language allows Bush to “claim significant powers and the mantle of a Wartime President….Bush has successfully used the language of War to legitimize much of his policy agenda.”

When he spoke of the “rule of law” and democracies, Miliband explicitly said the UK welcomed Barack Obama’s promise to close Guantanamo. This seemed like a clear signal to the incoming administration that even America’s closest ally wants change it can believe in.

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Obama’s exit strategy?

Today, Jesse Singal has an excellent post challenging the role of conventional wisdom in making national security policy. All-too-often, he suggests, the terms of political debate and the potential policy options are locked in by a national security elite that infrequently finds its ideas contested, however dubious they might be.

For example, what are we to make of the forthcoming increased attention devoted to Afghanistan and Pakistan — even though many security analysts don’t see much of a threat from the Taliban and al Qaeda forces located there? Singal references a provocative article by Juan Cole in today’s Salon, which strongly suggests that Barack Obama’s new administration will be taking numerous risks by refocusing the global war on terror on Osama bin Laden and the remants of al Qaeda.

Personally, I am hopeful that Obama’s team sees a GWOT exit strategy in Afghanistan and Pakistan.

First, don’t forget the big upside of refocusing the GWOT. By emphasizing the relative importance of Afghanistan and Pakistan, Obama can more readily extricate the US from Iraq with NIE-backed cover. Hawks fear an al Qaeda “safe haven” in Iraq’s future should the US withdraw, but the 2007 NIE already said al Qaeda has a safe haven in Pakistan. It makes sense to devote resources to the “real” threat, not some imagined future worst-case scenario.

Second, Afghanistan and Pakistan provide potential pathways by which the US could declare final victory in the GWOT and end it. The easiest means would be by capturing or killing Osama bin Laden in Pakistan, or by proving that he’s already dead.

A more subtle means would be via an effective “surge” in Afghanistan and Pakistan. Frankly, this may well require some equivalent of the Anbar Awakening within the key target areas of Afghanistan and Pakistan. The US needs to convince locals that “foreign fighters” are the invaders that must be resisted. The US could provide cash and maybe guns (like it did versus the Soviets) and minimize its own footprint. The US must not be seen as the foreign invaders (as it is now).

With the Musharraf regime gone, the US can also win allies within Pakistan by treating the new government with a lot more respect. For example, the ongoing missile strikes in the border area are really unpopular with Pakistan’s population, so it would help to end these — and achieve the military objectives through other means. Expediency will likely have to give way to methods based on a less intrusive model (grounded in the rule of law, not just military might).

I think it’s also possible that some sort of negotiated grand compromise could be achieved. The US would agree to exit contested areas of Afghanistan; the Taliban and its local allies would agree to stop committing acts of violence; Pakistan would agree to enforce the law within the confines of the law; and everyone would agree that al Qaeda is illegitimate.

None of these policies are risk-free. Pakistan, I have recently been reminded, faces massive corruption problems. How can the US count on any deal with such a state?

Still, I’d argue that’s a better place to be than engaged in an apparently unending and dangerous “global war on terror” that promotes global lawlessness and creates new terrorists.

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War on Pakistan?

Yesterday, US troops crossed the Pakistan border for the first time — clearly extending the war in Afghanistan into another state. This is from The Washington Post story:

Helicopters carried U.S. and Afghan commandos many miles into Pakistan on Wednesday to stage the first U.S. ground attack against a Taliban target inside the country, Pakistani officials said. At least 20 local people died in the raid, according to the officials.

Pakistan filed a protest and the US military apparently had no comment.

Mohammed Sadiq, a spokesman for Pakistan’s Foreign Ministry, condemned a “gross violation of Pakistan’s territory” and “a grave provocation.” In a written statement, he said his office lodged a formal complaint with the U.S. Embassy in Islamabad.

“Such actions are counterproductive and certainly do not help our joint efforts to fight terrorism,” Sadiq said. “On the contrary, they undermine the very basis of cooperation and may fuel the fire of hatred and violence that we are trying to extinguish.”

I do not really fault Pakistan for this response. Escalation can be dangerous.

Pakistan representatives say this was not a case of “hot pursuit” and that there is no bilateral agreement allowing such attacks in any case.

This is not the first time that the US has extended the “war on terror” into Pakistan — just the first use of ground forces.

In January 2006, the US launched a missile attack on a small village in Pakistan, reportedly because al Qaeda’s number two man was visiting. He was not hit and Pakistan considered the strike an act of war. I previously argued that the attack was too provocative and unjustified given the information at hand.

Last summer, on the heels of a terror NIE finding that al Qaeda had established a “safe haven” in the Federally Administered Tribal Areas (FATA) of Pakistan, US Homeland Security Director Fran Townsend warned that Pakistan could be attacked under the Bush Doctrine of preemption.

Is the US at war with Pakistan?

Incidentally, John McCain has previously said he would not strike Pakistan — even as other prominent Republicans criticized Barack Obama for threatening Pakistan in various ways.

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