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Executive & Military

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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The al-Aulaqi Opinion and Fourth Amendment “Seizures”

Friday’s decision by Judge Collyer, in which she dismissed Bivens claims brought by the families of Anwar al-Aulaqi, his son Abdulrahman, and Samir Khan (arising out of their targeted killing by U.S. forces), has something for everyone. Thus, for example, Judge Collyer rejected the government’s argument that the political question doctrine should apply, explaining (quite rightly, in my view) that the political question doctrine simply has no bearing when it comes to the deprivation of life and liberty by the U.S. government, especially in ex post suits seeking money damages.

Militating in the other direction, Judge Collyer refused to “extend” Bivens to encompass the plaintiffs’ claims under the Due Process Clause of the Fifth Amendment, noting the rather pervasive hostility to Bivens in recent years–especially in national security litigation, as typified in the D.C. Circuit’s Doe v. Rumsfeld decision. I’ve written before at great length about why such hostility to Bivens gets the relevant considerations backwards in national security cases, and Carlos Vázquez and I published an article last year explaining on a more basic level how these cases represent the very judicial lawmaking that is supposedly behind the opposition to Bivens. But whether all of these circuit-level decisions are rightly decided or not, it’s hard to blame Judge Collyer for simply following the trend, at least on the plaintiffs’ due process claims.

At the same time, no “new” Bivens claim arguably needed to be inferred to cover the plaintiffs’ Fourth Amendment claims–since Bivens itself was a Fourth Amendment case. But instead of distinguishing Bivens (however implausibly) and holding that no remedy exists in this context, Judge Collyer opted for a different tack–rejecting the plaintiffs’ Fourth Amendment claim on the merits.…   continue »

Seymour Hersh’s Second Bite at the Apple: The Syrian chemical weapons conspiracy 2.0

In December 2013, Seymour Hersh published a potential bombshell story entitled, “Whose sarin?” The story purported to show that the White House knew it had insufficient evidence that Assad’s military forces — rather than the rebels — were responsible for the sarin attacks in Ghouta despite President Obama’s invoking those attacks as the public justification for going to war. In response, I published a post at Just Security which attempted to evaluate Hersh’s evidence in its most favorable light. But my conclusion was that his evidence was weak and, in important respects, misleading. Other analyses of Hersh’s story (Eliot Higgins and Joanna Paraszczuk and Scott Lucas) reached similar conclusions. The bombshell story seemed more like a dud.

This weekend, the London Review of Books published a new story by Hersh. This time, Hersh claims to show that Turkey was responsible for covertly supplying the Syrian rebels with the sarin used in the chemical weapons attacks in Ghouta, and that Prime Minister Erdoğan’s agents were responsible for helping bring about the false flag operation.

Others have already raised significant concerns (here and here) about Hersh’s latest report. I am not going to dive as deeply into Hersh’s new story this time, except for a few observations.

At the outset, I should note a couple observations in favor of Hersh. First, his latest story could provide answers to some of the questions raised by his earlier report. Most importantly, it might help to address the criticism that the rebels would not have had the capacity to produce the quantity of chemicals used in the attacks. The potential answer: they got it from Turkey. Second, other critics correctly note that key pieces of Hersh’s latest story rely on a single source, an anonymous “former senior US intelligence official, who has access to current intelligence,” and, indeed, this individual may not have even served in the Obama administration.  continue »

Why the CIA? Why no U.S. acknowledgement?

Just to follow up on Ryan’s post:  Mark Mazzetti’s story for the Times, assuming it is accurate, confirms what I tried to explain in a post a few weeks ago — namely, that whether one U.S. agency rather than another engages in the use of force abroad, and whether the U.S. acknowledges its role in that use of force, are typically a function not of the law, but instead of the particular things that allies might insist upon as a condition of their cooperation and/or consent.  Accordingly, to the extent anyone wishes to change U.S. practices in these respects, it is essential to consider how, if at all, one might work to change those underlying diplomatic realities.


Yemen Banned Pentagon’s Drone Operations after US Struck Wedding Procession

In Sunday’s New York Times, a must-read story by Mark Mazzetti chronicles a wide range of issues involving the CIA and counterterrorism programs. A news development that might be lost, among all the other issues covered in the story, involves the Pentagon’s drone operations in Yemen. Take the first paragraph and two paragraphs that appear much later in the story, and the following emerges:

1. The Defense Department’s Joint Special Operations Command was responsible for the drone strike that hit a wedding convoy in Yemen in December 2013 (the US military’s role was also previously reported by NBC).

2.  Following the “botched” strike, Yemen’s government called for a halt to all drone operations conducted by the Defense Department.

3. Defense Department drone operations have since stopped, though CIA drone operations in Yemen have been allowed to continue.

Two matters of importance emerge from this account.

First, it is notable that Yemen’s preference for CIA over DOD operations is now part of a pattern repeated in other countries such as Jordan and Pakistan which also favor the CIA over the DOD, according to the Times story. (The covert program in Jordan involves arming and training Syrian rebels.)

Second, the strong reaction by the Yemeni government is more consistent with reports by human rights groups contending that the December 2013 strike killed innocent civilians and is less consistent with recent (anonymous) US officials’ claiming that only members of al-Qaida were killed in the attack. If the latter were correct, why would it have outraged the Yemeni government to the point of calling off future DOD operations?

Here are the three relevant paragraphs from the New York Times:

“In the skies above Yemen, the Pentagon’s armed drones have stopped flying, a result of the ban on American military drone strikes imposed by the government there after a number of botched operations in recent years killed Yemeni civilians.

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Detention After the AUMF

Hot off the presses comes the Fordham Law Review‘s print issue with the papers from last September’s symposium on “Citizenship, Immigration, and National Security After 9/11.” Although the volume is chock full of important and interesting papers by Muneer Ahmad, Linda Bosniak, Jennifer Elsea, Ramzi Kassem, Andrew Kent, Peter Margulies, Peter Spiro, and Leti Volpp, I wanted to flag mine, in particular–because I suspect it’s going to piss off just about everyone.

The SSCI Report and the Right to the Truth about the CIA’s Secret Detention and Extraordinary Rendition Program

Today’s vote to declassify and ultimately release portions of the exhaustive Senate Select Committee on Intelligence (SSCI) report on the CIA’s rendition, detention, and interrogation program is a crucial milestone in the quest for transparency concerning U.S. extraordinary rendition and torture. A human rights perspective on the significance of the release underscores what is still left to be done, and reminds us of the stake we all have in transparency and disclosure. In recent years, international and regional human rights bodies have championed the “right to truth” in the aftermath of gross human rights violations. Various bodies trace the right to treaty-based obligations of states to investigate, remedy, and ensure the non-recurrence of grave harms such as enforced disappearance and extrajudicial killings, as well as to provisions of international humanitarian law.  In 2012, the European Court of Human Rights applied this right to Macedonian abuses related to the U.S. extraordinary rendition program in the case of El-Masri v. Macedonia. The question thus presents itself: is the declassification and release of portions of the SSCI report compelled by the right to the truth? Can the process—marred as it is by a conflict of interest in which the CIA has a key role in reviewing portions of the report for declassification—ultimately reveal those facts the American public needs in order to assess what was done in our name?

Unlike many rights, which belong solely to victims, society at large holds a right to the truth about gross violations committed by their government. Thus, while the release of the executive summary of the SSCI report is important in efforts to provide some redress to individuals who were once held and transferred by the CIA, the right to the truth is held by all of us.…   continue »