Igniting The Debate Over Obama's Secret War

Barack Obama's use of Predator drones in Pakistan represents, according to Hina Shamsi, a human-rights lawyer at the New York University School of Law, "targeted international killings by the state." In the New Yorker, Jane Mayer takes the first in-depth look at a major part of Obama's counter-terrorism strategy: the classified but widely reported-on CIA/Air Force program that targets Al Qaeda and Taliban leaders for death. As Mayer notes, since the beginning of the Obama administration, Predator strikes have dramatically increased, as has the conviction among many analysts that the rate of civilian casualties is backstopping radicalism and engendering hatred against the United States. Among Mayer's revelations: the CIA's counter-terrorism center (CTC) has the authority to decide whether its target is legitimate -- and then authority, without consulting the White House, to launch the Predator's Hellfire missiles.

Mayer implies that CIA does not have the same target screening procedures or training as the Department of Defense, implying that the CIA isn't making decisions while bearing in mind law of war restraints.

I asked several administration officials whether CIA lawyers were involved in the targeting and, if so, whether those lawyers had received sufficient training. I did not get a direct response, in part because the program remains nominally classified.

"The CIA employs lawful, highly precise, battle-tested tactics and tools against al-Qaeda and its violent allies," said George Little, a CIA spokesperson. "Al-Qaeda and its sympathizers, though still very dangerous and determined, have seen both their leadership and their fighting capabilities eroded."

Collateral damage is a major problem. There are suggestions that large numbers of persons, aside from individual targets, have been killed/harmed, but it's far from clear that these were mostly/largely civilians who could not lawfully be targeted. U.S. officials insist that virtually every reported instance of civillian casualties has been dramatically overplayed by the Taliban, and that in most instances where more than one person was targeted, the authority was given to fire the missile with explicit foreknowledge that other people would be harmed -- and that these people were very likely to be associated with the target in such a way as to convince the CIA that innocents they were not. It is very hard to evaluate these claims independently, and it stands to reason that the CIA would insist that the folks it is responsible for killing are bad guys. The best non-US estimates, including a new New America Foundation analysis, suggest that at least 150 civilians have been killed since January 20.

Mayer writes -- and her article is not online, unfortunately:

Under international law, in order for the U.S. government to legally target civilian terror suspects abroad it has to define a terrorist group as one engaging in armed conflict, and the use of force must be a "military necessity." There must be no reasonable alternative to killing, such as capture, and to warrant death the target must be "directly participating in hostilities." The use of force has to be considered "proportionate" to the threat. Finally, the foreign nation in which such targeted killing takes place has to give its permission. Many lawyers who have looked at America's drone program in Pakistan believe that it meets these basic legal tests. But they are nevertheless troubled, as the U.S. government keeps broadening the definition of acceptable high-value targets...

The government almost certainly would not agree that the starting point for discussion is the premise that the drones are targeting "civilian" terror suspects. I am quite sure they would say, no, we are targeting combatants who are leaders or otherwise important figures in organizations actively engaged in armed hostilities against the United States, Afghan, and Pakistani armed forces, and that such persons can be killed whenever located subject to proportionality concerns.

One can appreciate both the humanitarian and intelligence-gathering rationales behind the importation of a "no reasonable alternative to killing, such as capture" test onto the battlefield setting. The "military necessity" standard is much looser. The standard used by the CIA/DoD program is the military standard, because the people it targets are combatants in a war. That's the legal underpinning Obama endorses.

Critics of the program believe that it is fundamentally bad policy from a counterinsurgency perspective because it stokes anger -- and thus recruiting -- and does so out of proportion to the strategic gains involved.