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Executive & Military

How We Read a NYTimes Story on Drone Strikes in Yemen

In this post, we’re trying something new. Below, we present an almost line-by-line annotation of yesterday’s New York Times story on US and Yemeni military operations in Yemen. Among other things, the following is intended to identify legal implications of the news being reported, the significance of some of the revelations, and paths for further investigative reporting.

U.S. Drones and Yemeni Forces Kill Qaeda-Linked Fighters, Officials Say
By Eric Schmitt. Saeed Al Batati contributed reporting from Sana, Yemen, and Mark Mazzetti from Washington.
New York Times

WASHINGTON — American drones and Yemeni counterterrorism forces killed more than three dozen militants[1] linked to Al Qaeda’s affiliate in Yemen over the weekend in one of the largest such attacks there in months[2], officials[3] from both countries said Monday.

[1] Note that the story leads with “militants” instead of “alleged militants.” Technically this difference is solved by the reference to “officials … said” at the end of the sentence. Still, the lede creates an initial impression that the individuals killed were indeed militants, rather than signalling to the reader that the issue might be contested. This kind of formulation — asserting militancy as fact, and later attributing those claims to officials —  occurs frequently throughout this story.  Given the anonymity of the official claims, repeated cases in which official claims have subsequently proven unreliable, the difficulty of determining “militancy,” and what is at stake in the categorization, the NYT could assist its readers by including more nuance in such coverage. In addition to signals such as “alleged,” some stories could place an initial reference to “militants” in scare quotes.

[2] It is a significant understatement to call this one of the largest attacks in “months.” If the reported casualties are accurate, the weekend strikes were one of the largest attacks in the history of US strikes in Yemen.

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Consequences of the Fact-Based Armed Conflict Test in Yemen’s Internal Armed Conflict

Ryan’s recent post about ongoing “drone strikes” in Yemen raises an issue that has troubled me for quite some time from a legal, policy, and advocacy perspective.

In the last of his four points, Ryan questions whether the United States is involved in Yemen’s internal armed conflict. The reason this argument can be made (and has been made) is because, as LOAC lawyers know, an assessment of whether an “armed conflict” exists under international law is a fact-based assessment. An armed conflict is based on objective criteria; not on the subjective views of the military, lawmakers, or anyone else (although such views may be strong indicators that an armed conflict does exist).

The reason this rule was codified in LOAC was to combat the practice of States that refused to admit they were in armed conflicts, including internal armed conflict, because they found it politically, economically, or militarily disadvantageous to admit that rebels may have gotten the upper-hand. States have also refused to admit they were in internal armed conflicts to avoid following LOAC rules, a body of law that has expanded over the years through treaty and customary international law.

The fact-based test for armed conflict, at least at first glance appears to bring more, rather than less, regulations into hostilities and ensure greater protection for civilians. These include rules relating to the humane treatment of detainees, authority of humanitarian relief agencies to offer assistance, and strict(ish) rules on who can be killed and under what circumstances.

However, in the context of U.S. strikes in Yemen, the reliance on the fact-based test seems to have different consequences. Saying that the United States is in a LOAC alongside Yemen allows, as a matter of international law, the United States to carry out LOAC targeting operations under a legal justification that, as Ryan pointed out in his previous post, the United States itself may not agree with or publicly admit to.…   continue »

Ongoing “Drone Strikes” in Yemen Raise Four Questions

From Saturday to Monday morning, the US has reportedly been carrying out a series of air strikes in Yemen, delivering multiple blows to Al Qaeda in the Arabian Peninsula (AQAP). According to a Yemeni official who spoke with CNN, the strikes are “massive and unprecedented.” Shrouded in secrecy, the actions raise questions about the consistency of US operations with the “New Rules” that the White House announced on May 23, 2013 for lethal operations. The actions also raise a profound question about whether US involvement in Yemen (a) has slid into fighting an insurgency (i.e., an internal armed conflict) on the side of the Yemeni government rather than (b) combating AQAP as part of the transnational armed conflict with Al Qaeda pursuant to Congress’s Authorization to Use Military Force.

On Saturday, air strikes reportedly killed 10 AQAP militants in a vehicle but also resulted in killing 3 civilians and wounding 2 civilians in an approaching car. On Sunday and early Monday morning, a series of air strikes reportedly killed another 25 people suspected of being AQAP members. Initial news reports have conflicted over some of the details, and access to the remote mountainous areas, where the strikes occurred, create difficulties for journalists to report. Accordingly, some of the information is sparse, and relies significantly on statements by Yemeni officials. That said, what information is available raises the following questions.

1. Civilian Deaths

The President’s New Rules for kill or capture operations outside of areas of active hostilities forbid strikes that present even a marginal risk of civilian casualties. According to the rules, one of the “criteria [that] must be met before lethal action may be taken” is:

“Near certainty that non-combatants will not be injured or killed.”

Saturday’s attack, however, resulted in 3 civilians dead and 2 wounded.…   continue »

Weak Tea: Seymour Hersh Elaborates His Views on Why to Trust Russian Spies

If you have been following the response to Sy Hersh’s claims that rebels—and not Assad’s forces—used chemical weapons in the fateful attacks on civilians in Syria in August 2013, you likely know that his story depends—critically—on the trustworthiness of Russian military intelligence. Hersh wrote that “Russian military intelligence operatives had recovered samples of the chemical agent from Ghouta,” the site of the attacks, and sent those samples to the British. In an earlier post, I raised concerns about this link in Hersh’s story, and others have as well (here, here, here, see also these tweets Tom Coghlan, Foreign Correspondent for The Times).

Scott Horton interviewed Hersh, and unlike others who interviewed Sy, Scott raised the Russian question.

Below is Just Security‘s transcription of Hersh’s response in full. In his own words, he explains the reason why he thinks Russian intelligence is to be trusted (and was trusted by the US and British agencies) and laughs (literally) at people who don’t think so. I will let his explanation speak for itself:

Scott Horton: … I think, well, it’s all over Twitter, anyway, that like, well yeah, you know, right, it’s a Russian sample so how can you believe it? But it seems to me from your reporting here that the UK and the US Governments didn’t have a problem with the Russian origin of the sample.

Seymour Hersh: Oh my God, don’t forget, we and the Russians were pretty good allies in the 1990s. And when the chemical warfare treaty went into effect in 1997, we pooled information with the Russians. And I can also tell you, I write about this in my article, it certainly did come from a Russian.

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Ukraine accepts ICC Jurisdiction but stops short, way short

The Registrar of the International Criminal Court has announced that it has received a declaration from Ukraine accepting jurisdiction for international crimes committed on its territory between November 21, 2013 and February 22, 2014.

The start date of Nov. 21, 2013 is the day that Ukrainian President Viktor Yanukovych’s government announced it was abandoning the agreement with the European Union. And the end date of Feb. 22, 2014 is the day Yanukovych fled the country. It thus covers the period in which Yanukovych’s government used force to try to repress the protests that eventually ended his hold on power.

As I wrote in an earlier post at Just Security, Kiev would be well served by going the full distance and joining the Rome Statute in toto. It would raise the costs for Putin and for any future military action on the part of the Russian forces. As international actors grapple for additional levers to use against Moscow, there is still one waiting in The Hague.

Letter to the Editor from former U.S. Army JAG replying to Ryan Goodman on recent amends legislation

As a former judge advocate of the U.S. Army who served as a claims officer in Iraq for 14 months, I strongly support the new statute that allows for payments to be offered to civilian victims of U.S. military operations.  While Mr. Goodman provides a valid critique, there are legal and policy considerations that I believe trump his concern.  As he rightly points out, to receive a payment the civilian recipient must be “friendly to the United States” and the local commander is tasked with making that determination.

This requirement could be used by a commander to disqualify any number of people, including the examples provided by Mr. Goodman.  However, this is a cost that must be paid, and, I would argue, it will likely prove to be a small cost.

The Pentagon would not have supported the law and Congress would not have passed the law without the limitation that a recipient be “friendly.”  I do not disagree with their logic.  The military should not be in a position to pay an individual who engaged in, or supported, operations against the U.S. military or its interests.  Does that open a slippery slope?  Maybe, but having served as a claims officer and working with the Center for Civilians in Conflict for a number of years, including discussing this very issue with Pentagon officials and former and current judge advocates and commanders, I believe the benefits of the system outweigh this concern.

With or without the “friendly” requirement, the system would still be entirely discretionary, like the Foreign Claims Act, which provides payment for “noncombat activities.”  This means that a commander can refuse payment for any reason.  That discretion is necessary because commanders are operating in conditions that policy makers cannot always envision.…   continue »

New study may explode some myths about drones (and may create new ones)

The CNA Corporation, a non-profit research and analysis organization which runs the Center for Naval Analyses, recently published an important report by Larry Lewis, entitled Drone Strikes in Pakistan: Reasons to Assess Civilian Casualties. Below is my summary of its major conclusions, and some of my concerns and criticisms. [For other (more positive) reactions to the study, see Professor Charli Carpenter's and Professor Derek Gregory's posts.]

I. Summary of major conclusions

Conclusion 1: The US government underestimates civilian casualty rates in Pakistan.

The report identifies two types of mistakes—legal errors and factual errors—that are part of current US policy.

Legal error: According to the report, the administration classifies some casualties as combatants when they should instead be presumed civilian unless proven otherwise. The source of this error includes: the legal definition of civilians, the presumption that should apply in cases of doubt, and the factors that should be used to rebut or uphold that presumption.

Factual error: According to the report, the US government tends to underestimate the actual count of civilian casualties because of flawed methods of verification (e.g., insufficient HUMINT and follow-up investigations on the ground).

Add-on no. 1: The study makes an interesting analytic point: the failure to  count civilian casualties properly makes it difficult for the administration to meet its legal obligations to avoid harms to civilians. The report states:

“[T]he ability of a military to do everything possible to avert civilian harm is limited by its ability to consistently recognize instances of civilian harm. If the problem of civilian harm is not recognized and well-understood, then the actual scale of civilian harm will be misunderstood and measures will not be put in place to address it effectively.”

Added-on no.…   continue »

New Statute Provides Amends to Foreign Civilians Killed by the United States – but only if they’re “friendly”

Earlier this month, Just Security published a guest post by Sahr Muhammedally outlining a new congressional statute whereby the Defense Department can now move ahead in establishing a program that gives amends to foreign civilians who are injured as a result of US combat operations. The new law — section 8127 of the Consolidated Appropriations Act of 2014 — appropriates funds even for injuries that result from completely lawful US military actions. The idea is to respect the dignity of innocent war victims and provide at least some gesture of our concern for their loss. The architects of the program champion the ethical and strategic values of this effort, and, indeed, it appears to be the result in part of extraordinary work of organizations such as the Center for Civilians in Conflict.

The law, however, has a defect that could potentially undermine its own objectives. It allows payments to be made only if the foreign civilian is determined to be “friendly to the United States.” The law states:

“An ex gratia payment under this section may be provided only if … the prospective foreign civilian recipient is determined by the local military commander to be friendly to the United States”

The United States has a long history of making payments to foreign civilians for harms suffered as a result of US military actions. In World War II, the military found that such payments “created a wholesome respect for our Government and had a pronounced stabilizing effect.” Another instructive example was President Reagan’s actions after the downing of an Iranian civilian airliner by USS Vincennes. Reagan stated unequivocally that the US crew acted lawfully on the basis of a reasonable, though ultimately mistaken, assessment that the aircraft was an Iranian warplane.…   continue »

State of play of the SSCI report on the CIA interrogation program: the relationship between declassification and disclosure

Last Thursday, Senator Diane Feinstein, the Chairman of the Senate Select Committee on Intelligence (SSCI), issued a statement that the SSCI had voted that afternoon “to declassify” a 480-page executive summary of the SSCI’s report on the CIA Detention and Interrogation Program, as well as 20 findings and conclusions of the Committee majority.  The Senator’s statement further explained that “[t]he full 6,200-page full report has been updated and will be held for declassification at a later time.”

This statement, and related news accounts of the SSCI vote, have led to some confusion about just what the Committee voted to do; about who has the final say on declassification; about who has the authority to publicly release the documents in question; and about the relationship between declassification and the authority to release the documents.  The confusion is compounded by the fact that the committee vote was taken in a closed session, and no transcript is available to the public.

In this post, I’ll try to clear up some of that confusion.  The upshot is this:  Although the Senate and the Executive appear to have a difference of views on whether the SSCI would have the lawful authority to disclose any information that remains classified, there is unlikely to be any need to confront that question with respect to the Executive Summary (ES) of the Report and the Findings & Conclusions (F&C).  The Committee’s 11-3 vote last Thursday–which was not to “declassify” the ES and F&C, but instead to send them to the President so that the Executive branch can declassify those documents–was an exercise in comity, designed to reach a consensus about what should be released, and thereby preclude any need to invoke the Senate’s process for dealing with cases in which the SSCI wishes to release classified information over the President’s objections.…   continue »

Hersh’s Syria Conspiracy Theory: The CIA and Intelligence Oversight Questions

In a previous post, I discussed the Senate Intelligence Committee report on the attack against U.S. facilities and personnel in Benghazi, Libya.  That post contemplated bias by congressional committees in favor of their oversight subject agencies.  On Monday, Ryan addressed Seymour Hersh’s latest article advancing a theory that Turkey was responsible for a false flag operation in Syria in which the rebels were the real perpetrators of the sarin gas attacks in Ghouta.  Others have been withering in their criticism of the theory and sourcing.

Ryan alerted me to the following additional allegation by Hersh that related to the Senate Intelligence Committee’s report:

A highly classified annex to the report, not made public, described a secret agreement reached in early 2012 between the Obama and Erdoğan administrations. It pertained to the rat line. By the terms of the agreement, funding came from Turkey, as well as Saudi Arabia and Qatar; the CIA, with the support of MI6, was responsible for getting arms from Gaddafi’s arsenals into Syria. A number of front companies were set up in Libya, some under the cover of Australian entities. Retired American soldiers, who didn’t always know who was really employing them, were hired to manage procurement and shipping. The operation was run by David Petraeus, the CIA director who would soon resign when it became known he was having an affair with his biographer. (A spokesperson for Petraeus denied the operation ever took place.)

The operation had not been disclosed at the time it was set up to the congressional intelligence committees and the congressional leadership, as required by law since the 1970s. The involvement of MI6 enabled the CIA to evade the law by classifying the mission as a liaison operation.

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