Talking in Circles

Why Harold Koh's big speech on targeted killings is just more of the same, intentional Obama muddle.

Like many former senior Obama administration officials, Harold Koh has expressed his concerns about U.S. drone strike policies. As the former State Department legal adviser, he played an essential role in articulating and defending the international legal principles that supported "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles," as he stated in a March 2010 speech. Koh was also responsible for coordinating the official U.S. government response to questions raised by U.N. special rapporteurs and within the Human Rights Council. As Koh proclaimed last summer, "I did not come to government because I wanted to work on killing people."

Unfortunately for him, because President Barack Obama authorized over 375 drone strikes killing over 3,000 people while Koh was the State Department's lead lawyer, he's been forced to dedicate a great deal of time to killing people.

Unfortunately, in a speech made two days ago at the Oxford Union, Koh demonstrated that he plans to maintain the fundamental myth of the Obama administration's targeted killing program: that everyone killed is a senior al Qaeda official or member who poses an imminent threat of attack on the U.S. homeland. In April 2010, Koh claimed, regarding targeted killings: "I have never changed my mind. Not from before I was in the government -- or after." Apparently, that sentiment remains true today. Consider several passages from the "disciplining drones" section of his most recent speech:

Few dispute that targeted killing may on balance promote human rights if it targets only sworn leaders -- like bin Laden himself -- to save the lives of many innocent civilians from unprovoked attack.

Few dispute this because it is irrelevant to the vast majority of individuals that have been targeted with drones: militants in Pakistan who pose a threat to U.S. troops in Afghanistan, and those individuals primarily focused on domestic insurgencies in Pakistan and Yemen. But using bin Laden's name as the reference point and justification for drone strikes is intended to perpetually link all U.S. counterterrorism operations to the tragedy of 9/11.

Koh then invites his audience to imagine what the U.S. response to 9/11 would have been if Al Gore had been elected president. Koh claims that there would have been "100 percent approval" if a President Gore stated:

We must incapacitate -- by capture if possible, by killing if necessary -- Osama bin Laden and his senior operational leaders -- several hundred in all -- who pose a direct threat to the United States.

Again, the American public would have endorsed such a speech -- and if the United States had only captured or killed several hundred al Qaeda leaders (rather than the 3,500 to 4,700 suspected terrorists and civilians that have died to date), this would be relevant. However, thanks to the unprecedented revelations provided by Jonathan Landay, we now know that even the CIA does not think that only senior operational leaders have been targeted. Moreover, I am unaware of any official estimate that al Qaeda had "several hundred" senior operational leaders. Al Qaeda never had such a hierarchical and top-heavy organizational structure. It was more Bloomberg than Pentagon.

Koh then admirably makes several recommendations to the administration, three of which would be useful reforms:

Make public and transparent its legal standards and institutional processes for targeting and drone strikes....

clarify its method of counting civilian casualties, and why that method is consistent with international humanitarian law standards....

Where factual disputes exist about the threat level against which past drone strikes were directed, the administration should release the factual record....doing it could explain what gave it cause to believe that particular threats were imminent, called for the immediate exercise of self-defense.

The first part of the first recommendation could have been implemented at any time on Koh's watch. As I noted earlier, U.N. investigators have asked U.S. officials since President George W. Bush was in office to clearly articulate what international laws apply to U.S. targeted killings. The official response released by Koh's office in 2010 declared: "International human rights law and international humanitarian law are complementary, reinforcing, and animated by humanitarian principles designed to protect innocent life."

My experience of speaking with legal scholars about drone strikes is that nobody agrees on much. However, most contend that these are distinct bodies of law, and their applicability depends on how one conceives of the scope of armed conflict in which the United States is engaged. And if targeted killings are assessed through an international human rights law framework, then some legal scholars contend that they violate many articles of the International Covenant on Civil and Political Rights, to which the United States acceded in 1992. The same motivation that Koh did not delineate back in 2010 could be why the Obama administration will still not in 2013 -- namely, that they want to retain flexibility over what legal standards should apply to drones.

The second recommendation should be adopted and implemented by the Obama administration today. But doing so will require that the United States acknowledge that it conducts signature strikes against anonymous military-age males, which no government official has ever done publicly. When CIA Director John Brennan was asked during a House Permanent Select Committee on Intelligence hearing three weeks ago, "Is there any way that you can define and distinguish between targeted strikes and signature strikes by drones?" he stonewalled. "I'm not going to engage in any type of discussion on that here today, congresswoman."

This was reflected by Mark Mazzetti, who recently wrote: "American officials admit it is nearly impossible to judge a person's age from thousands of feet in the air." Likewise, it will be especially difficult to endorse a methodology for counting civilian casualties when the CIA's post-strike assessments use terms like "foreign fighters" and "other militants."

When I spoke to Sarah Holewinski, the executive director of the Center for Civilians in Conflict, about Koh's recommendation, she wondered whether it could be implemented for non-battlefield targeted killings given that the U.S. military will not provide that level of detail for airstrikes in Afghanistan. Holewinski also noted that the Obama administration must first define what it considers a combatant and a civilian before it presents whatever its internal protocols are for civilian harm mitigation -- those should be shared with Congress first (we do not know if they are), and then made available for public scrutiny. Furthermore, Holewinski added, "preventing civilian harm isn't only saying that you do, but also showing and proving it, both with Congress and the public."

Koh's third recommendation is not likely to be realized, since many would dispute the threat level against which the vast majority of drone strikes occurred, and no administration is going to compel the CIA to present the evidentiary basis for which it determined someone was an imminent threat and should therefore be killed.

When I sent the recommendation to a former senior intelligence official, they replied by e-mail: "1) Never happen. 2) how would you prove ‘threat level' w/out revealing sources/methods. 3) Wouldn't you have to do this for all the detainees as well?" Moreover, according to the CIA's own records, on May 22, 2007, a strike was conducted at the request of Pakistani intelligence to assist the Pakistani Army when it was assaulting an insurgent training camp. Koh could start by explaining how the individuals killed -- while providing close air support to Pakistani counterinsurgency operations -- posed an imminent threat to the U.S. homeland.

Koh's Oxford Union speech offered several important recommendations that could significantly improve transparency, oversight, and public knowledge of how the United States conducts lethal counterterrorism operations. Unfortunately, all of the reasons for which they will be difficult to implement and publicly defend are demonstrated in how the Obama administration chose to justify and conduct targeted killings throughout the president's first term. As was true with issues like government transparency and the closing of Guantanamo, the president and his senior advisers acknowledged concerns regarding U.S. drone strike policies, thus raising expectations that they were serious about reforming them. Rather than engage in a conversation with the public and Congress about such reforms, they default to recirculating old speeches, which contain their own shortcomings that are never addressed.

As the Obama administration prepares its forthcoming drone strike reforms, it should reach out to the former senior civilian and military officials that have spoken out against aspects of U.S. targeted-killing policies and provided their own recommendations. President Obama and his aides admit that how the United States defends and conducts drone strikes is setting a precedent that other states may emulate. Before the White House rolls out its reforms, it should ask itself: "What would we want Beijing to say after it conducts its first drone strike?"


National Security

Outsourcing Lethality

When there's a foreign finger on the trigger, is Washington still accountable when innocents die?

"Outsourcing" is a dirty word in Washington these days. But officials are strangely silent when it involves targeted killings. This column has repeatedly focused on the scope, distinction, legality, and strategic effectiveness of America's Third War of non-battlefield targeted killings in Pakistan, Yemen, Somalia, and the Philippines. Among the most widely promulgated criticisms of U.S. drone strikes is the absence of any transparency in decision making, limited congressional and judicial oversight, and the potential for civilian harm without any apparent corrective action. Policymakers and analysts have offered suggestions for how -- over 10 years after they began -- the Obama administration could comprehensively reform its targeted killing policies. Finally, President Barack Obama and Attorney General Eric Holder promised some reforms related to transparency "in the months ahead." That was several months ago. Given the Obama administration's refusal to provide witnesses to recent congressional hearings on drones -- or answer clarifying questions posed by journalists and policymakers -- it is likely that forthcoming announcements will fall short of the president's repeated goal of making his, "the most transparent administration in history."

However, if you're concerned by the Obama administration's targeted killing policies, don't overlook similar attacks conducted by allies and partners who receive U.S. money, weapons, or actionable intelligence. When the United States provides other states or non-state actors with the capabilities that enable lethal operations -- without which they would not happen -- it bears primary responsibility for the outcome. Whatever drone strike reforms the White House offers, or if additional congressional hearings are held, they must take into account America's troubling role in client-state targeted killings. Consider some of the most egregious recent examples which the United States directly abetted:

Somalia. Beginning in 2002, a small number of CIA officers and Joint Special Operations Command (JSOC) forces established a task force that attempted to capture or kill approximately 20 operatives from al Qaeda's East Africa cell. The strategy for achieving this short-term objective was the "use of ‘non-traditional liaison partners' (e.g. militia leaders)," as a leaked diplomatic cable from the U.S. embassy in Nairobi, Kenya, later described it. For his unmatched history of U.S. counterterror operations, Dirty Wars: The World Is a Battlefield, Jeremy Scahill interviewed one of these liaison partners, the warlord Mohamed Afrah Qanyare. As Scahill writes, in return for $100,000 to $150,000 a month from his CIA handlers, "Qanyare and his comrades engaged in an all-out targeted kill and capture campaign against anyone -- Somali or foreign -- they suspected of being a supporter of any Islamic movement." An intelligence source later told journalist Sean Naylor that the CIA warlords helped capture perhaps "seven or eight" al Qaeda figures in Somalia.

Northern Iraq. In November 2007, the United States opened a combined "intelligence fusion cell" in Ankara, Turkey, where, according to a leaked U.S. diplomatic cable: "We have made available to the Turks a dedicated RC-135 Rivet Joint aircraft, U-2 imagery, and full motion video from a Predator....U.S. and Turkish personnel work side-by-side to analyze incoming intelligence from these systems." As a Pentagon official characterized the cooperation soon after the Ankara cell opened, the United States was "essentially handing them their targets." Every State Department Country Reports on Human Rights Practices released since 2007 notes instances of civilians being killed in Turkish counterterrorism operations against suspected PKK militants, though there is never any mention of U.S. culpability.

In December 2011, a U.S. drone provided the initial video that led to a Turkish airstrike which killed 34 civilians, including 17 children. As a senior Pentagon official doth professed too much: "The Turks made the call. It wasn't an American decision." The recently released State Department human rights report merely noted the catastrophe: "Opposition and human rights organizations alleged that the incident was the result of a failure to implement adequate controls to safeguard civilian life." Unmentioned is what controls at all are in place to prevent U.S.-supplied intelligence from being used in future Turkish airstrikes that place civilians at risk.

Joseph Kony. In December 2008, four Ugandan MI-24 helicopters launched rockets and opened fire against four camps in the Democratic Republic of Congo's Garamba National Park. As journalist Scott Johnson reported, earlier that day, at a staging base in Uganda, U.S. military advisers used maps to show the helicopter pilots the targets: "four distinct ‘fishhook shape' camps spread out in cleared areas of the park." The operation was part of a significant U.S. military commitment to help the Ugandan government kill the Lord's Resistance Army leader, which was apparently a priority for President George W. Bush. (A senior White House official later told me that in his second term, Bush asked about the efforts to kill Kony as much as he did Osama bin Laden.) The 2008 attack, however, was a failure: "the helicopter crews later stated that several dozen people, including women and children, had been caught in the open." Three years later, Obama authorized the deployment of 100 U.S. military advisers to "fuse [American] intelligence with [Ugandan] operational planning" to get Kony. As Pentagon official Alexander Vershbow told the House Foreign Affairs Committee that month: "We certainly are trying to enhance the capacity of our partners to capture or kill Joseph Kony and other commanders. But they will be doing the actual military mission on the ground."

Pakistan. In 2009, after five years of close cooperation in approving individual CIA drone strikes, Pakistan accepted the establishment of joint intelligence fusion cells. As a leaked U.S. diplomatic cable from May of that year noted: "Pakistan has begun to accept intelligence, surveillance, and reconnaissance support from the US military for COIN [counterinsurgency] operations." Sharing targeting intelligence with Pakistan's military was intended to help Islamabad attack those same Taliban militants that were the focus of CIA missiles, without allowing Pakistani intelligence to tip off these targets in advance. Gen. David Petraeus, then commander of U.S. Central Command, told the Senate in April 2009 of instances where "an intelligence agency contact is warning [the Taliban] of an impending operation." As one notable example of this cooperation, in the fall of 2011, the United States provided Pakistan with the coordinates for a Taliban camp somewhere in the tribal areas. Using the advanced F-16s (Block 52) that the United States had sold them in 2010, the Pakistanis bombed the target, but hit "the wrong chain of mountains," according to an anonymous former U.S. official. Given the habitual practice of Pakistan's security forces conducting extrajudicial killings during its COIN operations, bombing mountains was probably the best outcome.

Honduras. On two separate occasions in July 2012, Honduran fighter pilots -- "using American radar intelligence" -- shot down suspected drug smuggling planes above the Caribbean Sea. As Damien Cave and Ginger Thompson reported: "How many people were killed? Were drugs aboard, or innocent civilians? Officials here and in Washington say they do not know. The planes were never found." The policy of U.S. radar sharing with Tegucigalpa was suspended in August, but resumed in November due to, "a series of corrective measures Honduras has taken to avoid shooting down civilian aircraft," according to an U.S. embassy spokesperson. Given America's insatiable demand for any illicit drugs the planes contained, providing the intelligence that led to their destruction and death of crew members was surely an ineffective, tactical response to drug smuggling.

Mali. Starting in February 2013, the military began flying a small number of unarmed drones out of a base in western Niger to track suspected al Qaeda affiliates and other Islamist militant groups in Algeria, Niger, and Mali. Though the Obama administration would not rule out equipping the drones with missiles in the future, one senior official proclaimed: "We don't want to abet a lethal action." However, not long after these words were uttered, the United States began to "pass the raw [drone] video feeds and other real time data to French military and intelligence officers." As the Wall Street Journal reported in March, the drones "provided intelligence and targeting information that have led to nearly sixty French airstrikes in the past week alone." Among those reportedly killed was militant leader Mokhtar Belmokhtar, who the Obama administration was considering adding to a JSOC kill list, and who had been targeted in 2003 before the ambassador to Mali vetoed the operation.

There are many other recent examples of targeted killings executed by Washington's clients, including counterterrorism operations conducted by Afghanistan, Kenya, the Philippines, Yemen, and elsewhere. The difference between U.S.-led and client-state targeted killing operations is that the latter more easily masks U.S. involvement and culpability. As Chairman of the House Intelligence Committee Rep. Mike Rogers warned about sharing targeting intelligence last year: "What happens if this information gets to the [foreign] government and they do something wrong with it, or it gets into the hands of someone who does something wrong with it?"

This is a perplexing question coming from the policymaker who is supposed to be providing oversight of the CIA. If the White House and Congress finally agree to reform the legal and operational principles that guide U.S. non-battlefield targeted killings, those principles must also apply to those conducted on America's behalf. It is important for U.S. policymakers to consider lethal operations in which a foreign finger is on the trigger, as this will likely increase over time. The core objective of the Pentagon's expansion of "building partnership capacity" initiatives is to train, equip, and share intelligence with other militaries -- to enable them to capture or kill those individuals that threaten U.S. interests. But when those operations can only be conducted and sustained with direct U.S. assistance, then the United States should ultimately be accountable.

U.S. Air Force photo/Tech. Sgt. Jeremy T. Lock