When Does a Random Taxi Driver Become a Lawful Combatant?

Mohammad Azam, in a photo at the linked Guardian article.

Mohammad Azam, in a photo at the linked Guardian article.

A couple of weeks ago, I wrote a post questioning the Obama Administration’s logic in killing the leader of the Afghan Taliban in a drone strike in Pakistan. It turns out that the Defense Department also employed some very suspect reasoning surrounding the drone strike.

On June 1 (apologies for the delay, but as most of you know, our site was hacked and has migrated to a new host) Brigadier General Charles H. Cleveland, who heads the US effort in Afghanistan, took part in a press conference in which he was patched into Washington via a video link from Kabul. At the end of the transcript, we have a very telling exchange:

Q: General, Lucas Tomlinson, from Fox News. Just a quick follow-up to Louis’ question. Were you or General Nicholson concerned that Mullah Mansur was in Iran? And are you concerned about Iran sheltering Taliban officials? Thank you.

BRIG. GEN. CLEVELAND: Yes, Lucas. Thank you very much.

You know, our — our real focus on it, again, continue to be Afghanistan and I know it sounds like I’m dodging your question and I don’t mean to, but again, you know, the location of Mullah Mansur and where he was either before or during the strike, et cetera, are really questions that probably the team back in Washington, D.C., has got a better answer for you.

Our real role, again, as I think you’re well aware — Mullah Mansur was a threat to U.S. forces, he was an obstacle to peace. An opportunity presented, the president made a decision and he was targeted and he was killed. And so really, the rest of the aspect of that really is better to answer — better answered back in Washington, D.C.

Q: And lastly, was the taxi cab driver — was he part of the Taliban, too? Did he — did he have that same threat to U.S. forces?

BRIG. GEN. CLEVELAND: So bottom line is we are confident, Lucas, in our targeting and we are confident that he was a lawful combatant.

General Cleveland’s response to Tomlinson here would have us think that Mohammad Azam, the taxi driver who was killed along with Mansour, was a member of the Taliban who posed a direct threat to the US. That would seem to make him an appropriate target for killing.

It seems that a suitable reference on which to rely for DoD’s thinking on combatants is to go back to William Haynes’ memo dated December 12, 2002 and titled “Lawful Combatants”. This memo comes from Haynes as General Counsel to DoD and is addressed to a Roundtable assembled by the Council on Foreign Relations. It appears that this exercise was geared toward providing legal cover for the Bush Administration’s “new” reading of international law and especially its attempts to shield prisoners from the Geneva Conventions.

In the memo, Haynes says this with regard to combatants:

An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war.”

“Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention. (The treatment accorded to unlawful combatants is discussed below).

The President has determined that al Qaida members are unlawful combatants because (among other reasons) they are members of a non-state actor terrorist group that does not receive the protections of the Third Geneva Convention. He additionally determined that the Taliban detainees are unlawful combatants because they do not satisfy the criteria for POW status set out in Article 4 of the Third Geneva Convention. Although the President’s determination on this issue is final, courts have concurred with his determination.

So according to the 2002 DoD interpretation of a “determination” by President George W. Bush, members of the Taliban are enemy combatants. But they also are unlawful combatants instead of lawful combatants, so that is one bit of misleading information from Cleveland.

A much bigger problem, though, is that from all appearances, Mohammad Azam was not a driver affiliated with the Taliban and certainly not Mansour’s personal driver. The Guardian looked carefully into the circumstances of how Azam came to be driving Mansour and it appears that Azam was randomly assigned to drive Mansour:

It was a series of chance occurrences that led to Azam finding one of the US’s most wanted men sitting in his white Toyota Corolla.

Azam got much of his work though a small local transport company owned by Habib Saoli, which has its office near the exit of the Iranian-Pakistani border facility that straddles the border.

Mansoor emerged from that building shortly after 9am on 21 May, returning to Pakistan after a long visit to Iran which, it has been reported, was for both medical attention and to visit members of his family.

/snip/

He immediately began looking for a ride for the 600km journey to the city of Quetta.

Said Ahmed Jan, an employee of a bus company, was trying to fill up the final seats of his Quetta-bound minibus but Mansoor wasn’t interested.

“He said, ‘I want to go in a car’, so I called Habib and asked him to provide a car,” said Jan. “Habib took a little commission and gave the job to Azam.”

It’s very hard to see how a taxi driver randomly assigned to transport a legitimate target of the Defense Department suddenly becomes transformed into a lawful combatant himself. Despite Cleveland’s assurance to the contrary, I seriously doubt that DoD considered Azam a lawful combatant at the time they authorized the strike. The most logical assumption is that DoD came to the decision that Azam’s life was acceptable collateral damage for taking out Mansour. Cleveland simply lacked the honesty to deliver that sad truth.

There also may be legal reason for this lie, however, since Azam’s family has started the paperwork within Pakistan to sue the US over his death. It will be interesting to see whether the case proceeds, especially in light of the previous ruling in the Peshawar High Court that US drone strikes in Pakistan are war crimes.

Postscript: I suppose that one might argue that Cleveland was referring to Mansour rather than Azam when he was making his assurance that “he was a lawful combatant”, but then that says Cleveland completely ignored the question about the status of Azam.

Many years ago, Jim got a BA in Radiation Biophysics from the University of Kansas. He then got a PhD in Molecular Biology from UCLA and did postdoctoral research in yeast genetics at UC Berkeley and mouse retroviruses at Stanford. He joined biosys in Palo Alto, producing insect parasitic nematodes for pest control. In the early 1990’s, he moved to Gainesville, FL and founded a company that eventually became Entomos. He left the firm as it reorganized into Pasteuria Biosciences and chose not to found a new firm due a clash of values with venture capital investors, who generally lack all values. Upon leaving, he chose to be a stay at home dad, gentleman farmer, cook and horse wrangler. He discovered the online world through commenting at Glenn Greenwald’s blog in the Salon days and was involved in the briefly successful Chris Dodd move to block the bill to renew FISA. He then went on to blog at Firedoglake and served a brief stint as evening editor there. When the Emptywheel blog moved out of Firedoglake back to standalone status, Jim tagged along and blogged on anthrax, viruses, John Galt, Pakistan and Afghanistan. He is now a mostly lapsed blogger looking for a work-around to the depressing realization that pointing out the details of government malfeasance and elite immunity has approximately zero effect.
8 replies
  1. P J Evans says:

    I read the quote as him ignoring the question. I doubt that they even considered the possibility of the driver being hired for the trip, instead of being Taliban.

    But I suspect that the MIC doesn’t consider a lot of things when they’re deciding who to kill. (They sure don’t consider much when they go after hospitals and weddings.)

  2. bevin says:

    The taxi driver was an ordinary person and in this Manichean struggle between titans ordinary people are as dust.

    Mr Azam was, at least, working; most of the casualties in this massacre by assassination-one target and ten other victims at a time- are simply bystanders, or in the case of many of them, asleep nearby. Many are children whose lives are cut short in the cradle-one thinks of Sheikh Yassin’s neighbours; others, such as those pregnant women whose murderers, after mutilating the bodies to extract bullets, were exonerated last week, are merely suspected of living in communities from which the Taliban is thought to recruit. I’d like to read the Memo justifying their liquidation.

    What we see here is a way station in the rapid decline from the rule of law to an Hobbesian State of Nature in which death is around every corner and to oppose power is to invite extermination. There is nothing new about this: it was routine in Vietnam for years, it is daily practise in Palestine and has been pretty much all the time since 1938. In Latin America there are not only states built on the foundations of death squads but regional alliances with Secretary Generals, office staffs and Headquarters in public places, the OAS for example. And the intellectual and spiritual Vatican of Death Squads is in Georgia. It used to be called, with unusual frankness , The School of the Americas.

    The way station is that the imperial routines are now returning to the metropolis.
    But even this is not true: The Philippines were policed brutally, and that brutality was further developed in Vietnam etc. But The Philippines were policed according to the experience accumulated in Alabama and South Dakota- the line between killing Mr Azam and Wounded Knee is short and direct. It is what imperialists do to those in the line of fire when they are impatient to kill someone.

    As to Obama this is a central pillar of his legacy. When he ran for election he made noises about the Constitution and respect for the law. He promised to close Guantanamo and to broker peace in Palestine. He leaves us with two prospective successors committed to plunging even deeper into cynical neo fascistic abuses of power, barely masked by extravagant falsehoods of propaganda, designed to appeal to the only citizens who really seem to care, the simple minded and the sadistic.

    Obama came from Chicago of course, from the municipal machine, the Daley organisation, the city now run by Emanuel, in which police riot has escalated from the occasional scandal into the way things are.

    Had Mr Azam been killed in Chicago by cops, caught in the crossfire, they would probably have left a gun near his corpse. In Hebron it would have been a knife kicked in the general direction. In Afghanistan public opinion is a little more civilised; those who killed him, no doubt under the mistaken impression that Mansour (mullah for the purposes of apologists) was driving himself, are going to have to do better. They will ding the taxpayer for a few hundred thousand bucks of course-some for the family, most for the middlemen- but the doctrine of colateral casualty is liable to grate against hearts and minds where everyone could be called upon at any moment to help President Obama show that he is a real man rather than a civilised person.

  3. Charlie Savage says:

    A far simpler and more likely interpretation, I submit, is that Cleveland just misspoke and meant to say “lawful target” not “lawful combatant.” Certainly they don’t think the Taliban are now lawful combatants (Bush-era speak) or privileged belligerents (Obama-era speak).

    I agree he was probably evasively shifting from the question asked (re cab driver) to the overall strike. Their analysis was probably that Mansur was a lawful target and that the cab driver was lawful collateral damage (lawful because necessary/proportionate to a legitimate military aim).

  4. Garrett says:

    I don’t think that 2002 memo is at all a suitable reference for current administration or DoD terminology or legal theories.

    “Enemy combatant,” from that memo, was specifically dropped in 2009, for example.

    I don’t know what legal justifications they would give for assassinating a Taliban leader, after 2014, where Taliban are no longer claimed to be targetable just for that status, and then in Balochistan. But it doesn’t come from the 2002 memo.

  5. GKJames says:

    “The most logical assumption is that DoD came to the decision that Azam’s life was acceptable collateral damage.” That’s right. And Washington sees itself in the right. It acknowledges the principles governing the lawful use of force: “necessity, distinction, proportionality, and humanity (the avoidance of unnecessary suffering.” But it also holds the position that, “it would not be consistent with those principles to continue [a lethal] operation if anticipated civilians casualties would be excessive, [provided that “excessive” is seen] IN RELATION TO THE ANTICIPATED MILITARY ADVANTAGE. DOJ White Paper, p. 8 (my emphasis). Mansour was in their sights. If Azam had to go as well, too bad; the opportunity was too good to pass up. Worse, the USG will spend no end of money and energy to prevent a testing of its legal theory in a legitimate court proceeding.

  6. Evangelista says:

    Away back at the beginning, before all the justificating and bullshitting, the fundamental fact remains that assassination is murder. That assassination murder has no legal standing of any kind in any judiciary system. That any judiciary system engaging in any form of precedent-juggling to justificate assassination murdering, by, and in, so doing forfeits judiciary and adjudicative authority. The judiciary system, or any other branch, associate or arm of government, becomes an accessory and a co-conspirator, a participant and participating principal in contra-governmental gangster-style activities.

    Murder, by assassination, or under any other extra-adjudicative pretension to right or authority is necessarily contra-governmental because government exists as a human social institution for express purpose to define, establish and enforce alternatives to extra-judiciary ‘resolutions’ that are not resolutory.

    All persons in the United States’ current government, and associating themselves thereto, who engage in and participate in United States assassinations, at any proximity, including any extensions of justificating, are co-parties and co-murderers, from a president who permits and condones to generals and other military officers who concur and to ones who ‘just follow orders’ and to spokespeople and media reporters and even to citizens who accept, condone and justificate ‘rights’ to act above governing law, or by exception from law, or by privilege of exemption.

    Ex parte Quirin is flawed law for being wartime law, when logic of law is commonly colored by extant circumstances, and for being promulgated by a court that also affirmed internment of a cultural variant on grounds of it being variant. That not withstanding, the uirin decision was made by a court, in a court, in an adjudicative milieu in a proceeding constitution an adjudicative process. Quririn was not executed at the time of the process, wherefore the process was not post facto, or ex post facto, as all United States government sponsored assassination (and extra-POW incarcerations of assigned ‘enemies’) justifications have been and are.

    All assassinations are murders, all assassination murders are extra-judiciary, all de-legitimize the assassins and their directors, reducing ‘governments’ that engage in assassinating from legitimate governments to gangster agglomerations. Justificating assassinations at any level, up to and including the most sophist and sophisticated and the most subtle and assured, is justification for assassination, condoning of random murder.

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