The Rules - Engaging HVTs & OBL

[jmm99]

Late last year, the Washington Post broke a series of stories dealing with drones and targeted killings, including Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists (by Greg Miller, 23 Oct 2012):

Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.”

The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the “disposition” of suspects beyond the reach of American drones.

Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years. ... (more in story)

Bobby Chesney's comments on this story are here, Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article (24 Oct 2012).

Last week, WP added to the stew with CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say (by Greg Miller, Ellen Nakashima and Karen DeYoung, 19 Jan 2013):

The Obama administration is nearing completion of a detailed counterterrorism manual that is designed to establish clear rules for targeted-killing operations but leaves open a major exemption for the CIA’s campaign of drone strikes in Pakistan, U.S. officials said.

The carve-out would allow the CIA to continue pounding al-Qaeda and Taliban targets for a year or more before the agency is forced to comply with more stringent rules spelled out in a classified document that officials have described as a counterterrorism “playbook.”

The document, which is expected to be submitted to President Obama for final approval within weeks, marks the culmination of a year-long effort by the White House to codify its counterterrorism policies and create a guide for lethal operations through Obama’s second term. ... (more in story)

Bobby Chesney's comments on this story are here, Lethal Force Beyond the Battlefield: The Post’s “Playbook” Article (21 Jan 2013):

What does this portend for the use of armed drones going forward? It seems to me that this is yet another piece of evidence suggesting that the US government will continue to assert authority to use lethal force for counterterrorism purposes in at least some situations, outside the context of conventional conflict. Not that this is a big surprise. ... (more in article)

Barring an unforeseen Damascus moment, all the evidence suggests that US drone strikes will continue under a war paradigm - probably a "refined" paradigm, but still a war paradigm which will largely remain classified. See, U.S. drone strikes in Pakistan on rise for 2013 (by Greg Miller, 10 Jan 2013):

The CIA has opened the year with a flurry of drone strikes in Pakistan, pounding Taliban targets along the country’s tribal belt at a time when the Obama administration is preparing to disclose its plans for pulling most U.S. forces out of neighboring Afghanistan.

A strike Thursday in North Waziristan was the seventh in 10 days, marking a major escalation in the pace of attacks. Drone attacks had slipped in frequency to fewer than one per week last year.

Current and former U.S. intelligence officials attributed the increased tempo to a sense of urgency surrounding expectations that President Obama will soon order a drawdown that could leave Afghanistan with fewer than 6,000 U.S. troops after 2014. The strikes are seen as a way to weaken adversaries of the Afghan government before the withdrawal and serve notice that the United States will still be able to launch attacks. ... (more in story)

This continuation of the war paradigm (over what is now four presidential terms !) will, no doubt, discomfort any number of US "coalition partners", as exemplified by this story from Deutsche Welle last week, Should drone strikes be considered lawful? (18 Jan 2013):

Those opposed to drones, however, compare targeted killing to extrajudicial and state-sanctioned murder. They challenge the notion that targeted killing takes place in the context of war; the US and Pakistan, for example, are not at war with each other.

That is a crucial point in international law. In the case of war, the victims are combatants, the killing of whom can be justified under laws of war.

But if aggressors and victims are not at war, targeted killing is, technically speaking, illegal. That is, of course, unless the person or people killed posed an immediate danger to others - like a fatal shot fired by police at a hostage taker to save the lives of the hostages. ... (more in story)

The BLUF of the comments by DW's expert (Armin Krishnan) is that present US drone strike policy is illegal under the German view of law (domestic and international). See also DW, The legal gray zone of drone attacks (23 Jul 2012):

A US drone attack claimed its first German victim, a suspected Muslim fundamentalist, in 2010. A German federal investigation into the incident has reignited debate about the use of unmanned aircraft.

Shortly before his death, a man named in reports as Bunyamin E. travelled to the Pakistani region of North Waziristan, an Islamist stronghold. On October 4, 2010, a missile strike by a US drone struck the suspected radical Islamist along with a number of companions.
...
Federal German legal authorities are now investigating the controversial tactic after a nearly two-year long process of determining whether such an investigation is within the scope of their office. The US is operating in a legal gray zone and may have violated international law. Jochen Hippler of the Duisburg Institute for Development and Peace sees the drone attacks in Pakistan as especially problematic since they go against the will of the Pakistani government - at least officially.

"On the one hand, we have the problem that military attacks against a country with which one is not at war violate international law," the expert told DW. He believes a further problem lies in the killing of people merely suspected of being Islamic extremists: "In the US and in Germany, people have argued with good reason that the drone attacks represent capital punishment for people who have been accused of a crime without being given a trial." ... (much more in story)

Of course, the viewpoints expressed by DW's experts are based on application of a peace paradigm.

The situation (divergent views between the US and many of its NATO partners) reminds one of the pre- and post-WWI strategical disconnects analysed by Andre Beaufre. Pre-WWI, the lines were rather clearly drawn between the political struggle (the peace paradigm) and the military struggle (the war paradigm). After WWI, and especially after WWII with the advent of the Cold War and Nuclear Armament, the political and military struggles became mixed - as Gen. J. L. Collins titled it - "War in Peacetime".

Following Beaufre's logic, it seems doubtful that we can return to the simplicity of the 19th century where Peace was peace, War was war, and ne'er the twain shall meet. We will most likely continue to see situations which do not really fit either a pure peace paradigm or a pure war paradigm. Those situations will create both strategic and legal problems.

Regards

Mike