A tweet this morning by Daphne Eviatar alerted me to a very important article by Spencer Ackerman at his new home with the Guardian. Ackerman interviewed Dr. Larry Lewis, who is a research scientist at the Center for Naval Analyses but is also described by National Defense University as a Current Field Representative to the Joint Staff J7, Joint and Coalition Operational Analysis Division. In speaking with Ackerman, Lewis referred to a study he conducted with access to classified data, where his work had a remarkable finding:
Larry Lewis, a principal research scientist at the Center for Naval Analyses, a research group with close ties to the US military, studied air strikes in Afghanistan from mid-2010 to mid-2011, using classified military data on the strikes and the civilian casualties they caused. Lewis told the Guardian he found that the missile strikes conducted by remotely piloted aircraft, commonly known as drones, were 10 times more deadly to Afghan civilians than those performed by fighter jets.
Ackerman points out in the article that Lewis mentions some of this work in a recently published article in Prism, which is published by NDU (note: To make things clearer to folks reading Marcy’s work on Snowden, I will call the journal Prism and not PRISM, even though the Guardian is once again breaking the news and the journal uses all caps in its name). Although NDU doesn’t make it easy to find the most recent issue of Prism, I finally found a pdf of the entire latest issue here, where the article by Lewis and coauthor Sarah Holewinski (who is at the Center for Civilians in Conflict) can be found on pages 57 to 65.
Lewis and Holewinski open by framing the issue of protection of civilians as a lesson that the US military has to learn repeatedly:
Civilian casualties can risk the success of a combat mission. While not new, this is a lesson us defense forces have had to repeatedly relearn. Historically, civilian protection and efforts to address harm became priorities only when external pressures demanded attention. As the Pentagon reshapes its defenses and fighting force for the next decade, continuing this ad hoc pattern in the future is neither strategically smart nor ethically acceptable.
As Ackerman notes in the Guardian article, the Prism article makes mention of the finding regarding civilian drone casualties in Afghanistan outpacing those from conventional aerial attacks:
The assumption that UAS (Unmanned Aerial Systems) strikes are surgical in nature is also belied by research on recent combat operations in Afghanistan. There, UAS operations were statistically more likely to cause civilian casualties than were operations conducted by manned air platforms.
Lewis and Holewinski describe the impact of both failing to protect civilians and lying about operations in which civilians have died. After describing relatively well-known examples of drone strikes in Pakistan that included such horrors as a double-tap targeting rescuers, the strike on a jirga addressing mining issues that killed up to 40 civilians or deaths at a restaurant, Lewis and Holewinski move back to Afghanistan:
Independent investigations are not always correct in their assessment of civilian deaths; however, the inability of the U.S. to adequately investigate the outcome of its clandestine UAS strikes calls into question official denials of civilian harm. The U.S. has stated that these strikes kill only combatants; however, operations in Afghanistan are replete with examples where all the engaged individuals were believed to be combatants, but a later investigation found many or all were civilians misidentified as combatants.
The continued claims of lack of civilian deaths despite hard evidence to the contrary takes a huge toll both on US credibility and on what takes place in the war theater:
A growing body of research, including that conducted by this article’s authors, shows that civilian casualties (CIVCAS) and the mishandling of the aftermath can compel more people to work against U.S. interests. Indeed, America’s image has suffered for years under the weight of anger and dismay that a nation, which stands by the value of civilian protection in wartime, seemed indifferent to civilian suffering.
Sadly, this is a lesson that has not been learned by such luminaries as Barack Obama, Diane Feinstein and John Brennan. As Ackerman points out:
While the drone strikes remain classified, several senior Obama administration officials and their congressional allies have described them as notable for their precision. John Brennan, now the CIA director responsible for the agency’s drones, said in 2012 they provide “targeted strikes against specific al-Qaida terrorists”. While defending the strikes as legal and “targeted”, Obama conceded in May that “US strikes have resulted in civilian casualties, a risk that exists in all wars”. Dianne Feinstein, the California Democrat who chairs the Senate intelligence committee, said in February that drones kill only “single digits” worth of civilians annually.
It does not appear that we have even gotten to a “least untruthful” official US accounting of the civilian casualty rates due to drones. In the meantime, our credibility will continue to suffer and our enemies will continue to accumulate.
As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.
The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:
The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”
The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.
But then the Post piece brings up our old friend, the OLC:
The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.
The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”
A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.
“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”
This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.
I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the →']);" class="more-link">Continue reading
The targeted execution of Anwar al-Awlaki struck different people along the political spectrum in the United States in many different ways, but it has been heartening most all have recognized it as a seminal moment worthy of dissection and contemplation. Despite all the discussion afforded the execution of Awlaki in the last few days, it cannot be emphasized enough how impossible it is to have a completely meaningful discussion on the topic due to the relentless blanket of secrecy imposed by the United States government. Before I get into the substantive policy and legal issues surrounding the targeting and assassination of American citizens, which I will come back to in a separate post, a few words about said secrecy are in order.
The first to note, and complain of, the strange secrecy surrounding not just the kill listing of Awlaki, but the entire drone assassination program, was Marcy right here in Emptywheel. Within a couple of hours of the news of the Awlaki strike, she called for the release of the evidence and information serving as the Administration’s foundation for the extrajudicial execution of an American citizen and within a couple of hours of that, noted the ironic inanity of the pattern and practice of the one hand of the Obama Administration, through such officials as Bob Gates, James Clapper and Panetta trotting out “state secrets” to claim drone actions cannot even be mentioned while the other hand, through mouthpieces such as John Brennan are out blabbing all kinds of details in order to buck up Administration policy.
Now, you would expect us here at Emptywheel to vociferously complain about the rampant secrecy and hypocritical application of it by the Executive Branch, what has been refreshing, however, is how broad the spectrum of commentators voicing the same concerns has been. Glenn Greenwald was, as expected, on the cause from the start, but so too have voices on the other side of the traditional spectrum such as the Brookings Institute’s Benjamin Wittes, to former Gang of Eight member and noted hawk Jane Harman, and current Senate Armed Services Chairman Carl Levin and Daphne Eviatar of Human Rights First.
But if there were any doubt that it was just left leaning voices calling for release of targeting and legal foundation information, or only sources such as Emptywheel or the New York Times pointing out the hypocrisy and duplicity with which the Administration handles their precious “state secret”, then take a gander at what former Bush OLC chief Jack Goldsmith had to say Monday, after a weekend of contemplation of the issues surrounding the take out of Awlaki:
I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information.
I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.
Jack has hit the nail precisely on the head here, the courts to date have found no avenue of interjection, and even should they in the future, the matter is almost surely to be one of political nature. And accountability of our politicians depends on the public havin sufficient knowledge and information with which to make at least the basic fundamental decisions on propriety and scope. But Mr. Goldsmith, admirably, did not stop there and continued on to note the very hypocrisy and duplicity Marcy did last Friday:
We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s. So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.
A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people. Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike. It could also describe the limits of presidential power in this context.
The Obama administration frequently trumpets its commitment to transparency and the rule of law. The President and many of his subordinates were critical of what they deemed to be unnecessarily secretive Bush administration legal opinions, and they disclosed an unprecedented number of them, including many classified ones. Now is the time for the administration to apply to itself a principle that it applied to its predecessor.
Again, exactly right. From Marcy Wheeler, to Gang of Eight members, to Jack Goldsmith, the voice is both clear and consistent: The Obama Administration needs to come clean with as much of the legal and factual underpinnings as humanly possible short of compromising “means and methods” that truly are still secret. That would be, by almost any account, a lot of information and law with which the American public, indeed the world, could not only know and understand, but use to gauge their votes and opinions on. Doing so would make the United States, and its actions, stronger and more sound.
In the second part of this series, which I should have done by tomorrow morning sometime, I will discuss what we know, and what we don’t know, about the legal and factual underpinnings for targeted killing of US citizens, and sort through possible protocols that may be appropriate for placement of a citizen target and subsequent killing.
UPDATE: As MadDog noted in comments, Jack Goldsmith has penned a followup piece at Lawfare expounding on the need for release of the foundational underpinnings of how an American citizen such as Alawki came to be so targeted. Once again, it is spot on:
First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful). I do not know if the leaks are authorized in some sense or not, or where in the executive branch they come from, or what if anything the government might be doing to try to stop them. But of course the president is ultimately responsible for the leaks. One might think – I am not there yet, but I understand why someone might be – that the double standard on discussing covert actions disqualifies the government from invoking technical covertness to avoid scrutiny.
Second, there is no bar grounded in technical covertness, or in concerns about revealing means and methods of intelligence gathering, to revealing (either in a redacted opinion or in a separate document) the legal reasoning supporting a deadly strike on a U.S. citizen. John Brennan and Harold Koh have already talked about the legality of strikes outside Afghanistan in abstract terms, mostly focusing on international law. I don’t think much more detail on the international law basis is necessary; nor do I think that more disclosure on international law would do much to change the minds of critics who believe the strikes violate international law. But there has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.
Listen, we may not always agree with Jack here, and both Marcy and I have laid into him plenty over the years where appropriate; but credit should be given where and when due. It is here. And, while I am at it, I would like to recommend people read the Lawfare blog. All three principals there, Ben Wittes, Goldsmith and Bobby Chesney write intelligent and thoughtful pieces on national security and law of war issues. No, you will not always agree with them, nor they with you necessarily; that is okay, it is still informative and educational. If nothing else, you always want to know what the smart people on the other side are saying.
[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]
About a month ago, the semi-irrelevant “FishbowlDC” and Tucker Carlson’s self indulgent sandbox “Daily Caller” impressed themselves by scalping Dave Weigel from his position at the Washington Post. Fresh off the closest thing to a victory these folks may ever achieve, they have attempted to replicate their recently past glory by pulling the same cheap stunt with more purloined emails from the now defunct “Journolist”, with the biggest dagger in the back aimed at Spencer Ackerman, noted national security reporter now with Wired’s Danger Room Blog and his own site Attackerman right here at Firedoglake.
It was the moment of greatest peril for then-Sen. Barack Obama’s political career. In the heat of the presidential campaign, videos surfaced of Obama’s pastor, the Rev. Jeremiah Wright, angrily denouncing whites, the U.S. government and America itself. Obama had once bragged of his closeness to Wright. Now the black nationalist preacher’s rhetoric was threatening to torpedo Obama’s campaign.
Watching this all at home were members of Journolist, a listserv comprised of several hundred liberal journalists, as well as like-minded professors and activists. The tough questioning from the ABC anchors left many of them outraged. “George [Stephanopoulos],” fumed Richard Kim of the Nation, is “being a disgusting little rat snake.”
In one instance, Spencer Ackerman of the Washington Independent urged his colleagues to deflect attention from Obama’s relationship with Wright by changing the subject. Pick one of Obama’s conservative critics, Ackerman wrote, “Fred Barnes, Karl Rove, who cares — and call them racists.”
Michael Tomasky, a writer for the Guardian, also tried to rally his fellow members of Journolist: “Listen folks–in my opinion, we all have to do what we can to kill ABC and this idiocy in whatever venues we have. This isn’t about defending Obama. This is about how the [mainstream media] kills any chance of discourse that actually serves the people.”
That’s it?? So this is the Daily Caller’s claim to fame? Raison d’etre? This is the best and brightest they have to offer? Apparently so, and they are proud of it since they are going to the same putrid well of long dead private emails again so eagerly. What a bunch of cowardly limp dicks.
Spencer Ackerman and his friends on Journolist saw a wrong being committed in a craven political dirty play and discussed a way to right the wrong. If Daily Caller thinks that is controversial and worthy of a featured expose, they must be awfully hard up over there.
The subject attack by the right on Jeremiah Wright during the 2008 election, just as Ackerman and his fellow journalists discussed, was indeed a malicious and dishonest →']);" class="more-link">Continue reading