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By Henry "Chip" Carey
The Cold War and post-9/11 counter-terrorism have brought a return to asymmetric warfare. Guerrillas and terrorists fight without regard for the European-led, international criminal laws requiring uniforms and forbidding attacks on civilians. The honorable effort to “civilize war” at the 1899 Hague and 1949 Geneva Conventions has established criminal limits on international rules of engagement. The delegates at both treaty conferences faced a pressing dilemma: What should the law-abiding warrior do about lawless adversaries?
The state parties to existing and subsequent humanitarian law treaties have resolved that two wrongs do not make right. When there is any doubt about legal requirements, the law-abiding warrior is to err on the side of caution. To him it does not matter if an enemy combatant violates one of these laws—the warrior is still obliged to obey them. This International Humanitarian Law (IHL) forbids killing non-combatant civilians, using excessive force, or pursuing an unnecessary military objective.
The Bush and Obama administrations, despite what they have claimed, no longer respect IHL. Instead, the former Bush White House Chief Counsel Alberto Gonzáles called the Geneva Conventions “quaint” and irrelevant since 9/11. The world’s most influential state decided that this law can be ignored for the armed conflicts against not only al-Qaida but also the Taliban, which was the national government of Afghanistan and whose foot soldiers were illegally rendered by the U.S. to Guantánamo and today are targeted by Drone strikes. For example, one of the authors of the “torture memos,” John Yoo wrote, “We do not believe the Geneva Conventions apply. First, the Taliban was not a government.” This statement is blatantly false; the Taliban did head the government of Afghanistan and had the right to be treated like all UN Member States.
Policies that deny IHL rules such as civilian immunity or the sovereignty of foreign states to defend themselves put the U.S. at risk of similar future attacks. When the U.S. kills an unknown number of innocent people without any accountability, other states and militias will assume that the U.S. has decided to break and deny the legitimacy of international law—for the worse of everyone concerned.
The U.S. has decided to mirror the terrorists by first torturing international prisoners during the Bush administration, and now with Obama assassinating foreigners and even U.S. citizens. Yet both U.S. administrations have claimed to respect war law. The Bush administration claimed it could inflict “severe mental or physical pain” on detainees because it redefined torture as “very severe mental or physical pain,” a definition exceeding that of the Convention against Torture. The Obama administration, astonishingly, now claims that it can kill any military-age male near a Drone target, since these men are considered combatants. If men are no longer considered civilian non-combatants, then it’s no wonder so few “civilians” have been killed by U.S. Drone attacks—at least according to the U.S. government.
This lethal program, based on currently secret legal memoranda, assumes that the president has the power to be “judge, jury, and executioner” since no one can review the president’s decisions until after the fact—even then, we rely on either the notoriously acquiescent Congressional Intelligence Committees or on illegal leakers, who are subject to a very real risk of prosecution under Obama. The lack of disclosure about Drone strikes killing civilians is not only undemocratic and unaccountable, but it will cause us to lose the war against terrorism. Drones are a recruiting tool for al-Qaida’s next generation of terrorists. Captured terrorists such as the Times Square bomber, Faisal Shahzad, have stated that Drones are their motivation for attacking the U.S. Civilian deaths are the inevitable consequence of any policy that considers them legal collateral damage. The negative political effects are magnified because killing terrorists has become an overriding U.S. foreign policy goal.
The Obama administration’s decision to clandestinely operate the Drones program puts civilian protections at risk everywhere, including ultimately in the U.S. This largely un-reviewed policy was allegedly leaked by the Obama administration itself, despite its own national security laws forbidding the release of classified information. These same security laws are invoked to prevent court reviews of possible illegal government activity. Six alleged whistle-blowers have been prosecuted under the Espionage Act within this one Obama term. Since its enactment in 1917, the Espionage Act has only been used three times by all previous U.S. presidential administrations put together.
Yet, euphoria has been the narrative chord generally struck about the U.S. wonder-weapon, the Drone missile. The Obama government “admitted” on June 5 that a Drone killed al-Qaida’s number-two and also its chief of operations in North Waziristan, Pakistan. This recalls the U.S. claim during the 1991 Gulf War that U.S. “precision missiles” flawlessly hit Scud missiles fired at Israel in military videos offered at press conferences, only to learn that General Norman Schwarzkopf was misinforming the media.
In the case of Drone strikes against threats to the U.S., the Obama administration has not admitted to any civilian deaths in Pakistan since 2010. The Foundation for Fundamental Rights has initiated a law suit in the UK that asserts that one CIA Drone attacked killed 53, mostly civilians in Pakistan in 2011. Under the U.S. method of counting civilian casualties, dead females are considered unavoidable civilian casualties, legal under the doctrine of collateral damage if the combatants could not be killed in any other manner. The rising numbers of women, children, and civilian males killed are seldom taken into account. An August 2011 report by the London NGO, the Bureau for Investigative Journalism, found that of 2,292 deaths had occurred from Drone attacks, 385 were civilians. It also concluded that one in seven U.S. Drone attacks kills children; still the U.S. only admits to 50 civilian deaths. The U.S. claim that there have been zero civilian casualties from Drone strikes in 2012 would sound odd to the residents of Jolo in southern Philippines. A February 2012 Drone targeting the Jemaah Islamiyah and Abu Sayef terrorist groups killed 15 citizens. The U.S. has announced that it will increase its Drone fleet in the Philippines by 30 percent.
The dramatic increase in Drone missile attacks after the unsuccessful NATO Summit in Chicago ended in May without a plan to allow supplies to pass from Pakistan to Afghanistan, appear to be partly a signal that the U.S. is going to be less sympathetic to Pakistan’s pleas to halt the strikes. At least eight strikes occurred with around 15 people killed in the first eight days alone, compared to the rate of one strike every four days over the past four years. A June 7, 2012 NATO missile attack on a Taliban-occupied house also destroyed the house next door. Inside were 19 civilians—all killed. Three others were wounded. U.S. General John Allen has denied Afghan President Hamid Karzai’s claim that the U.S. needs the Afghanistan president’s permission to conduct air strikes—echoing the complaints from Pakistan President Asif Ali Zadari about U.S. Drone strikes in Pakistan, also conducted without his permission. According to international law, the U.S. needs both of their permission; otherwise we have illegally invaded those two countries.
While the U.S. claims to use Drones and torture to kill al-Qaida, the large majority of Asian targets appear to be Pakistani citizens or Afghan Taliban. There is also no evidence that the Taliban forces have been reduced in Afghanistan any more than al-Qaida has been reduced worldwide. So, the Drone campaign is not just against al-Qaida, as the Obama administration claims, but against armed insurgencies, such as those supported by the ISI, Pakistan’s Inter-Services Intelligence (which is funded by the U.S.). The Taliban, allegedly aided by Pakistan’s ISI security service, fights a corrupt Afghan government that was established and supported by the U.S. in return for providing the US military bases that have been used to attack Pakistani targets. The Taliban are not a worldwide terrorist network like al-Qaida but are rather part of the Pakistani supported network to keep Indian influence limited in Afghanistan. The U.S. is killing Taliban militants, their extended families, and anyone nearby with Drones, because the U.S. public would oppose sending large numbers of U.S. troops. Meanwhile, autonomous franchises of al-Qaida proliferate in the Middle East, East and West Africa, South and Southeast Asia, fueled in part by fury about the Drone attacks on civilian noncombatants.
President Obama himself insists he takes great care in approving strikes at weekly Situation Room meetings, according to The New York Times. However, killings in the past have proven to hit the wrong person. Two and a half years ago, the U.S. claimed to have killed al-Qaida’s number two, Abu Yahia al-Libi, but the Drone in South Waziristan got someone else. No investigation has been announced to say whom else the U.S. did kill then. Two weeks ago, the U.S. announced it had killed al-Libi, again—also without telling whether the “collateral damage,” was to civilian non-combatants or not. President Obama has also personally approved Drone attacks where the U.S. fired at combatants standing next to family members.
How does the President know that the terrorist identified on the kill list is the person who is killed? The answer is based only on the word from U.S. and notoriously unreliable Pakistani intelligence. This is the same U.S. intelligence agency that had said Saddam had weapons of mass destruction; the same Pakistan intelligence agency that continues to support the Taliban, who are coincidentally the most common targets of these attacks. This is the same Pakistani on-the-ground intelligence that claims it “did not know” that Osama bin-Laden was in Abbottabad, a Pakistani garrison town. The U.S. may think it is killing al-Qaida, by falsely conflating the Taliban and al-Qaida. Increasing civilian deaths resulting from increased Drone attacks in June 2012 have not made headlines in the U.S. Nor has the policy reported in the New York Times that “signature strikes” are permitted even where the identity of target is not known in advance.
It is natural for military leaders to assume military solutions work and that we can kill the last of the terrorists through attrition. Like the war on drugs, which has produced 50,000 deaths in less than six years in Mexico, body counts climb, terror is wrought, and drugs thrive while the U.S. belatedly plans to reduce its support to the military campaign in Mexico in ignominy.
Just as Columbia Law Professor James Liebman’s studies have shown how many innocent people have been executed and incarcerated after trials in the U.S.; just as three-quarters of those “worst of the worst,” in Defense Secretary Rumsfeld’s words, at Guantánamo were probably guilty of no crime, according to Ballen and Bergen and studies by the the law schools at UC-Berkeley and Seton Hall. Neither torture nor Drone strikes will be successful in a secret war against terror. Both affect relatively small numbers of terrorist enemies but alienate civilian populations and generate “knights” (the term used by Ayman al-Zawahiri, al-Qaida’s current leader, for his recruits) to be the vanguards of Islamic revolution through mass terror attacks, not armed social movements like the Taliban. Mistakes, whether innocently or motivationally conceived, are routinely made.
To win the war, the Obama and future U.S. administrations need to discuss this Drone policy openly, with full and independent review of what occurs on the ground after the fact. Ideally, a commission would be established. When NGOs find hundreds of civilians killed, and the U.S. says there are almost none, there are reasonable grounds for suspicion about the U.S. claims. The Obama administration should stop pursuing whistle-blowers as treasonous spies, which provide some vital information that ought to be in the public domain, just as Congress should halt its recent, bipartisan pursuit of Obama for selectively leaking aspects of his Drone policy. This policy should be completely released for public debate—beginning with Obama’s new definition of a "civilian"—which eerily recalls Bush’s Orwellian definition of torture as only death or organ failure. We only have his word for it that the strikes, like those of General Schwarzkopf in 1991, are direct hits.
Until that policy changes, every innocent civilian killed will result in new recruits for terrorism. The U.S. needs better intelligence from our forces on the ground, and not from spy satellites and the pro-Taliban ISI. This may not be popular in a U.S. democracy that abhors American casualties. However, producing innocent casualties abroad ought to abhor us just as much if we care about human life and want to avoid stoking terrorist retaliation.
Henry "Chip" Carey is Associate Professor of Political Science at Georgia State University in Atlanta. He is the author of: Privatizing the Democratic Peace: Policy Dilemmas of NGO Peacebuilding and Reaping What You Sow: A Comparative Examination of Torture Reform in the United States, Israel, France and Argentina.
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