State Department, DoD Argue Over “Rules” for Drone Targets Outside Pakistan
Ed: Now that he’s on the mend from heart surgery, Jim is going to do some posting at EW. Welcome, Jim!
Charlie Savage notes in today’s New York Times that the Departments of State and Defense are engaged in an argument over the choosing of targets for drone attacks outside Pakistan. The primary point of contention centers on whether only high level al Qaeda figures in places like Yemen and Somalia can be targeted or if even low level operatives in these areas can be targeted there, just as they are in Pakistan.
Arguing for a more constrained approach is Harold Koh at the State Department:
The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.
A more wide open approach is favored by Jeh Johnson at the Pentagon:
The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.
Sensing an opportunity to add to his “tough on terrorism” credentials, Senator Lindsey Graham (R-SC) can’t help but join in the DoD’s line of argument:
“This is a worldwide conflict without borders,” Mr. Graham argued. “Restricting the definition of the battlefield and restricting the definition of the enemy allows the enemy to regenerate and doesn’t deter people who are on the fence.”
However, there is a huge problem with the entire premise of this argument. It is extremely difficult to know with certainty who the high level and low level personnel are within any terrorist group. For example, earlier this month, we had this sobering reminder about the accuracy of targeting in night raids, which face many of the same targeting issues as drone strikes:
Every JSOC raid that also wounded or killed civilians, or destroyed a home or someone’s livelihood, became a source of grievance so deep that the counterproductive effects, still unfolding, are difficult to calculate. JSOC’s success in targeting the right homes, businesses and individuals was only ever about 50 percent, according to two senior commanders. They considered this rate a good one.
If targeting for night raids by JSOC is only about 50% accurate, how low is the accuracy for CIA drone strikes? The real world example of the strike carried out Sunday (DoD just couldn’t resist a strike on the the 9/11 ten year anniversary, could they?). The New York Times dutifully announces in its headline that “C.I.A. Kills Top Queda Operative in Drone Strike”, even though later in the article it is admitted that:
Little is known publicly about Mr. Shariri, a Saudi whom a senior administration official said acted as a liaison between Al Qaeda and the Pakistani Taliban, the group that has directed a wave of attacks against Pakistani government installations and hotels frequented by Westerners. According to an Interpol alert, Mr. Shariri was 33.
Pakistan will not confirm Shariri’s death or identity, according to Reuters:
Pakistan had no confirmation on Friday that al Qaeda’s chief of operations in the country had been killed in a recent drone strike in the northwestern tribal region, as reported by American officials.
Further, Pakistani intelligence officials spoken to by Reuters claimed they had no knowledge of Shariri:
Intelligence officials operating in the tribal regions near the Afghan border also had no information on al Shahri.
“We have neither heard of this man operating in this region, nor can we confirm his death,” said one.
With the identity of even high level terrorists so difficult to pin down, arguing in favor of allowing the targeting of low level terrorists seems to get dangerously close to a system where entire regions are targeted. It’s nice that Lindsey Graham and Jeh Johnson can be so certain in their pronouncements because if I were in their positions, I’d be a lot more concerned about the reliability of the intelligence underlying all targeting decisons.
Welcome back Jim White! Thanks for adding to EW!
@klynn: Thanks. I view it as a huge honor to be invited to post. Hope I don’t embarrass Marcy and bmaz too much…
Great to hear from you Jim.
I read your posts on the anthrax scandal.
I do not think you will embarrass neither bmaz nor marcy.*g*
Hey, Jim! It’s great to see you here!
Hey! Glad everything went well.
The way things are going, as long as they aren’t arguing about targets within the US, this is the natural progression.
Wait until we coordinate more closely with Israel and start targeting those pesky Palestinians.
@matthew carmody: Yeah, targeting inside the US has got to be a siren song for them right now. Note that the Republican Convention next year is in Tampa. A huge amount of DoD targeting takes place there at McDill.
I kinda doubt the Israelis would ask our help targeting Palestinians. They seem to do fine killing them on their own.
RULES?!? The CIA can hit anybody, anywhere, anytime withy impunity. So why worry that DoD can’t hit? They’ll just drop an email. Or more likely, go down the asle to where the CIA drones are run and say something like “Hey, Larry! The raghead at this location thinks you’re ugly and your wife is easy”.
Boxturtle (These are not human beings, these are cockroaches they tell themselves)
I don’t suppose anyone asked the Pakistani government and those “outside” Pakistan what their druthers would be about a foreign military power killing and maiming its citizens via high explosive missiles fired from unmanned spy agency-piloted aircraft.
Let’s also examine that “success” rates, per controlled media estimates, of one in two. How would we regard that particular rate if it applied to cash being on hand when one tried to cash one’s Social Security check, to the truthfulness of statements made to a jury, to delivered newborns not dropped on their heads by attending physicians, to elevators stopping at the desired floor, or to the accuracy and completeness of financial statements filed with the SEC by CFO’s for publicly listed companies?
I don’t think anyone in charge would find that a tolerable rate. Why should it be here, where death and maiming of innocent civilians is concerned, even if they are little brown pagans (to coin a phrase one imagines might be used at that fundamentalist aerospace college in Colorado Springs).
Earl – That is precisely one of the gaping issues.
[Senator Lindsey Graham (R-SC) can’t help but join in the DoD’s line of argument:
“This is a worldwide conflict without borders,” Mr. Graham argued. “Restricting the definition of the battlefield and restricting the definition of the enemy allows the enemy to regenerate and doesn’t deter people who are on the fence.”]
Oh, I see. We’re now in a perpetual World War forever, 24/7, until we have poured out all of our blood on the sands of the world’s deserts. War without end. Amen. No need to number World Wars any more. We’ve gone from WW-I to WW-II to The World War. No more Roman numerals needed.
We’ve got to get smarter than that.
Bob in AZ
@Bob Schacht: Perhaps Lindsey finally read 1984.
Yep anywhere anytime and coming to a neighborhood near you.
Ah, Jim, so very good to “see” you in the fine fettle of action, once again.
If the United States of America “reserves” itself the “right” to kill anyone, anywhere, and at anytime, “where our troops are on the ground”, even if those “targets” pose no “direct threat” to the US, then this will enhance our security so wonderfully well that we will never again have to concern ourselves with the angry feelings of the survivors of the innocents whom we will inevitably kill or the obvious “recruiting value” to those “organizations” which we “legitimately” target? And the “troops on the ground” thingie will disappear as the “battlefield” becomes where-ever and what-ever the DoD (and the CIA) determine it to “be”.
This DoD “reasoning” seems so very competently thought out, as well as conducive to endless peace, that t President Obama must surely approve of it/s.
Congratulations on such a rapid recovery, Jim White.
I brought this over to you, a good read for the weekend, and one that might interest others, too:
“Take heed of yrself and get plenty of rest.” (B. Dylan)
Thank you, fatster, for that exceptional link.
I didn’t know the reason why you were missing in action. I hope you have a speedy recovery and look forward to reading many more of your informative posts.
I was at a Harvard Law School/Brookings “Law, Security & Liberty after 9/11” (http://harvardnsj.com/2011/09/law-security-and-liberty-after-911/) at which Brennan was the keynoter and Charlie Savage was typing away at the back of the room.
The Savage story seems to have really pissed Brennan off. He made note of it twice, dismissing it as a reflection of the open debate about legal principles that Barak Obama insists upon. He pointed out that the Supreme Court is about legal argument (!) and that he assumed that Harvard lawyers also argued.
Of course, Brennan’s insistence that there’s nothing to see here, move along, left me with exactly the opposite impression.
(Brennan’s talk was focused on the rule of law, and how that’s core to the Obama terrorism policy. I was struck by how pointed he was about Congressional obstruction in closing Gitmo, trials in civilian court, etc. An audience member did ask about that rule of law thing in 2001-2003 when Brennan was at the CIA. His answer was that he wasn’t in the chain of command, expressed his disagreement, could have resigned but chose not to.
This is a fascinating conference. It’s not every day you have the Assistant Attorney General for the National Security Division sitting over your right shoulder. It’s open to the public, and if anyone happens to be in Cambridge, it’s worth wandering over to on Saturday.)
I should have added…
The Lawfare Blog is liveblogging it.
Jim, you will embarrass Mary or Bmaz too much, just enough. ;-)
Thanks for the article.
In President Obama’s foreword to the 2010 National Security Strategy he says: “In all that we do, we will advocate for and advance the basic rights upon which our Nation was founded, and which peoples of every race and region have made their own.”
And the NSS itself states: (excerpts)
“The rule of law—and our capacity to enforce it—advances our national security and strengthens our leadership. At home, fidelity to our laws and support for our law enforcement community safeguards American citizens and interests, while protecting and advancing our values.
“Legal Aspects of Countering Terrorism: The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. . .The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government.
“Uphold the Rule of Law: The rule of law—and our capacity to enforce it—advances our national security and strengthens our leadership. At home, fidelity to our laws and support for our law enforcement community safeguards American citizens and interests, while protecting and advancing our values. Around the globe, it allows us to hold actors accountable, while supporting both international security and the stability of the global economy. America’s commitment to the rule of law is fundamental to our efforts to build an international order that is capable of confronting the emerging challenges of the 21st century.”
It’s all bullshit, of course, just like everything else Obama has done.
Welcome back, Jimbo. You were about the only diarist (besides Jane) at FDL that made any sense. You take care of that ticker, now. We need you.
Earl mistakenly stuck this response to you in the wrong thread earlier, so although it is late, am copying it here now.
Earl, meant to add some stuff into that comment and got waylayed by some cops I needed to chat with on the phone. Here is the entry into the sweepstakes by Jack Goldsmith, and my guess is that it is pretty indicative of that vein of opinion, including that of the Yoo Tumor when he raises his ugly head. I think it fails miserably in a great many of the assumptions Goldsmith has to make to blithely frame and discuss as he has.
Goldsmith, of course doesn’t show his work on several wild leaps he makes to frame the issue how he needs to to make his argument. Like there is any valid and independent finding that the “host countries” do not have a capable system; apparently we just get to unilaterally and subjectively declare that anywhere in the world. Apparently assumes that anybody we target is a legitimate AQAP. Apparently assumes that even groups like al-Shabaab have enough nexus to….something….to be targeted. All fantastical; but, there you have it.
Saul, thanks for the report. Please give us one from Saturday’s session too if you go.
Just where do DoD and State keep all the fruit baskets and similar gifts that must be received from the grateful citizens of those backward little countries that we’re keeping safe with our drone strikes?
Thanks for all the kind comments, folks. For those of you who hadn’t heard, the surgery was to repair a valve (I’ve tweeted some about the #ValveJob) and it seems to have been very successful. The long term prognosis is excellent at this point, so I feel very lucky.
Hi Jim. I wondered where you were. Hope you’re feeling great by now.
This was a really information-dense conference, and in some ways, a very weird one for an outsider to this world. The somewhat funny looking guy wearing pink socks and loafers? John Rizzo, 35 year former CIA lawyer, who tied himself in rhetorical knots while trying to advocate (I think) for more transparency in the targeted-killing/drone program, a program he’s not permitted to acknowledge exists. Took me a little while to realize that “Article 3 Courts” are what a civilian like me would call “courts”.
My favorite moment: Jack Goldsmith quoting Glenn Greenwald to bolster the case that there’s continuity between Bush and Obama counter-terrorism policies. Former Obama adminstration people took exception to
Emerging hot button issue: language attached to the 2012 Defense Authorization bill mandating military custody/tribunals for domestic terrorists. Even people who advocated for military tribunals said things like: “OMG, that’s crazy. I want military tribunals, but never, ever once considered they be made mandatory.” There’s a feeling the Republicans are really dug in on this one, and it’s not going to end well.
Depressing theme: How can we “ratchet down” our society’s response to the terrorist threat? Our political system is too dysfunctional to allow it was the consensus. Stephen Carter pointed out that, in usual wars, there’s always the thing your opponent can do which will cause you to stop killing them, like surrender. We don’t even know what that would look like, so how will this ever end? This isn’t exactly news, but to hear the elites give voice to it so directly was even more depressing.
Hippie punching moment: Trevor Morrison equating John Yoo’s “Obama doesn’t think we’re at war” with an ACLU positon that “Obama’s just like Bush” and that dissent from the left made the administrations work harder. Sanford Levinson, from the audience did a good slap down on that.
I’m working on a more comprehensive write up and will post a link when I’m done.
Good for you on the valve job! I had mine in 1991, and so mine have kept me going for 20 years (and more, I hope). Valve jobs are becoming increasingly routine, but recovering from them still takes time and care. So do take care of yourself, please, as your contributions here area always so valuable!
Bob in AZ
“Depressing theme: How can we ‘ratchet down’ our society’s response to the terrorist threat? ”
The only way seems to be to end the perpetual war. As Jerry Nadler pointed out to me, our record on civil liberties goes all to heck when we’re at war, and this has been true for at least 100 years (although George Washington set a better example that has been ignored recently).
Bob in AZ
@Saul Tannenbaum: Thanks so much. I look forward to reading the longer write-up.
The assumption in the room was that an environment of constant threat was the new normal. There were those who thought that the response of constant war was appropriate. And then there were those who thought that the dysfunction of our political system made the response of constant war inescapable.
There were only a couple of suggestions about how to break the cycle. One person noted we could give Gitmo back to the Cubans and end the temptation to use it. But as another dryly noted, the Cubans probably want it cleared of inhabitants first. Philip Heymann, the former Watergete prosecutor, suggested public education, particularly in helping the public distinguish betweem small attacks and large attacks. He noted that he and a couple of other prominent people in the room could go off and set off a bunch of bombs in malls, causing large scale disruption, but shouldn’t be considered a large attack. There were not rousing calls for an educational campaign to explain how some bombings might be worse than other bombings.
Like I said, a very depressing theme.
The drone war is a career track. Its failures don’t matter:
CIA’s Push for Drone War Driven by Internal Needs
Analysis by Gareth Porter
And earlier in the same article:
Your reports, however depressing the themes may be, are much appreciated and respected.
Thank you, Saul Tannenbaum.
My writeup of the conference is here: