To avoid counting civilian deaths, Obama re-defined “militant” to mean “all military-age males in a strike zone

Virtually every time the U.S. fires a missile from a drone and ends the lives of Muslims, American media outlets dutifully trumpet in headlines that the dead were "militants" — even though those media outlets literally do not have the slightest idea of who was actually killed.

They simply cite always-unnamed "officials" claiming that the dead were "militants." It’s the most obvious and inexcusable form of rank propaganda: media outlets continuously propagating a vital claim without having the slightest idea if it’s true.

This practice continues even though key Obama officials have been caught lying, a term used advisedly, about how many civilians they’re killing. I’ve written and said many times before that in American media discourse, the definition of "militant" is any human being whose life is extinguished when an American missile or bomb detonates (that term was even used when Anwar Awlaki’s 16-year-old American son, Abdulrahman, was killed by a U.S. drone in Yemen two weeks after a drone killed his father, even though nobody claims the teenager was anything but completely innocent: "Another U.S. Drone Strike Kills Militants in Yemen").

This morning, the New York Times has a very lengthy and detailed article about President Obama’s counter-Terrorism policies based on interviews with "three dozen of his current and former advisers." I’m writing separately about the numerous revelations contained in that article, but want specifically to highlight this one vital passage about how the Obama administration determines who is a "militant." The article explains that Obama’s rhetorical emphasis on avoiding civilian deaths "did not significantly change" the drone program, because Obama himself simply expanded the definition of a "militant" to ensure that it includes virtually everyone killed by his drone strikes. Just read this remarkable passage;

Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good. "Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs," said one official, who requested anonymity to speak about what is still a classified program.

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the "single digits" — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants.

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low. The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it "guilt by association" that has led to "deceptive" estimates of civilian casualties.

"It bothers me when they say there were seven guys, so they must all be militants," the official said. "They count the corpses and they’re not really sure who they are."

For the moment, leave the ethical issues to the side that arise from viewing "all military-age males in a strike zone as combatants"; that’s nothing less than sociopathic, a term I use advisedly, but I discuss that in the separate, longer piece I’ve written. For now, consider what this means for American media outlets. Any of them which use the term "militants" to describe those killed by U.S. strikes are knowingly disseminating a false and misleading term of propaganda. By "militant," the Obama administration literally means nothing more than: any military-age male whom we kill, even when we know nothing else about them. They have no idea whether the person killed is really a militant: if they’re male and of a certain age they just call them one in order to whitewash their behavior and propagandize the citizenry (unless conclusive evidence somehow later emerges proving their innocence).

What kind of self-respecting media outlet would be party to this practice? Here’s the New York Times documenting that this is what the term "militant" means when used by government officials. Any media outlet that continues using it while knowing this is explicitly choosing to be an instrument for state propaganda — not that that’s anything new, but this makes this clearer than it’s ever been. More

 

 

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Al Jazeera journalist responds to U.S, labeling him Al Qaeda

Earlier this month, The Intercept reported that the U.S. government secretly labeled a prominent Al Jazeera journalist a member of Al Qaeda and placed him on a terror watch list.

The basis for the designation was unclear, but the reporter, Islamabad bureau chief Ahmad Zaidan, denies ever having been a member of the group. Reached last week in Doha, Qatar — where the state-funded Al Jazeera network is based — Zaidan spoke to The Intercept about the reaction to his work and the implications of being tracked by the U.S. government. “To monitor and bug journalists is absolutely immoral and unethical,” he said.

Zaidan was known for interviewing senior Al Qaeda figures, including Osama bin Laden, and he covered the wedding of bin Laden’s son in 2001. If it was those contacts that caused U.S. suspicions, Zaidan says, that runs counter to the purpose of journalism.

“Our job as journalists is to reach out to everybody. We are some sort of go-between in cases where the two parties are not talking to each other,” Zaidan said. “I was thinking that when I was interviewing bin Laden and interviewing these militants, that maybe at least [they can] hear each other, and maybe it can help humanity to reach some sort of middle way.”

Zaidan also sees discrimination behind the surveillance. “If Peter Bergen is meeting Osama bin Laden, or Robert Fisk is meeting Osama bin Laden, no problem,” he said. “But if a non-Westerner is meeting some wanted people, he should be doubted?”

Zaidan’s picture and watch list number appear in a 2012 National Security Agency presentation, which shows that analysts tracked his cell phone contacts and location data — or metadata — as part of a program that looked for people who moved like Al Qaeda couriers. The presentation and other NSA documents revealed that the U.S. was obtaining bulk call data records from Pakistani telecoms, and analyzing the metadata of tens of millions of Pakistani cell phones.

“Faisalabad, Lahore — these main cities are the residence of millions and millions of people,” Zaidan said. “They are following and surveilling every one of us. Who has made them the god of this globe?”

Zaidan says he has had good relations with the U.S. ambassador to Pakistan and has not had run-ins with U.S. authorities.

“I did not hide myself. Whenever I made an interview, I published it. If you have any objection to me, I am living in Islamabad, you can come ask for me anytime,” he said.

He noted that the United States is not the only country to have labeled him as Al Qaeda. Zaidan, who is Syrian, returned to his country for the first time in almost 35 years in early 2012, after the uprising began against President Bashar al-Assad. Zaidan reported from inside a stronghold of the Free Syrian Army, and soon after, he says Syrian state television aired a report claiming that he was a member of Al Qaeda and had been sent to Syria by the group’s leader, Ayman al-Zawahiri.

The allegations make him fear for his security. “If you are Al Qaeda, it means they can eliminate you. And I am afraid if somebody else might do something against me and he will put the blame on America now,” Zaidan said.

But when I asked if he regretted The Intercept publishing the story, Zaidan said: “My take, as a journalist, is that you have done your job. I can’t say, ‘Ok, if I have some information about Osama bin Laden, I have to publish it, but if you have something against Ahmad Zaidan or Al Jazeera, you should not publish it.’”

“This is the right of our audience,” he said. “We should not keep our audience in the dark otherwise we are like, in fact, the National Security Agency.” More

 

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ISIS Is Proof of the Failed "War on Terror"

Today al-Qaeda-type movements rule a vast area in northern and western Iraq and eastern and northern Syria, several hundred times larger than any territory ever controlled by Osama bin Laden.

It is since bin Laden’s death that al-Qaeda affiliates or clones have had their greatest successes, including the capture of Raqqa in the eastern part of Syria, the only provincial capital in that country to fall to the rebels, in March 2013. In January 2014, ISIS took over Fallujah just forty miles west of Baghdad, a city famously besieged and stormed by US Marines ten years earlier. Within a few months they had also captured Mosul and Tikrit. The battle lines may continue to change, but the overall expansion of their power will be difficult to reverse. With their swift and multipronged assault across central and northern Iraq in June 2014, the ISIS militants had superseded al-Qaeda as the most powerful and effective jihadi group in the world.

These developments came as a shock to many in the West, including politicians and specialists whose view of what was happening often seemed outpaced by events. One reason for this was that it was too risky for journalists and outside observers to visit the areas where ISIS was operating, because of the extreme danger of being kidnapped or murdered. "Those who used to protect the foreign media can no longer protect themselves," one intrepid correspondent told me, explaining why he would not be returning to rebel-held Syria.

This lack of coverage had been convenient for the US and other Western governments because it enabled them to play down the extent to which the "war on terror" had failed so catastrophically in the years since 9/11. This failure is also masked by deceptions and self-deceptions on the part of governments. Speaking at West Point on America’s role in the world on May 28, 2014, President Obama said that the main threat to the US no longer came from al-Qaeda central but from "decentralized al-Qaeda affiliates and extremists, many with agendas focused on the countries where they operate." He added that "as the Syrian civil war spills across borders, the capacity of battle-hardened extremist groups to come after us only increases." This was true enough, but Obama’s solution to the danger was, as he put it, "to ramp up support for those in the Syrian opposition who offer the best alternative to terrorists." By June he was asking Congress for $500 million to train and equip "appropriately vetted" members of the Syrian opposition. It is here that there was a real intention to deceive, because, as Biden was to admit five months later, the Syrian military opposition is dominated by ISIS and by Jabhat al-Nusra, the official al-Qaeda representative, in addition to other extreme jihadi groups. In reality, there is no dividing wall between them and America’s supposedly moderate opposition allies.

An intelligence officer from a Middle Eastern country neighboring Syria told me that ISIS members "say they are always pleased when sophisticated weapons are sent to anti-Assad groups of any kind, because they can always get the arms off them by threats of force or cash payments." These are not empty boasts. Arms supplied by US allies such as Saudi Arabia and Qatar to anti-Assad forces in Syria have been captured regularly in Iraq. I experienced a small example of the consequences of this inflow of weapons even before the fall of Mosul, when, in the summer of 2014, I tried to book a flight to Baghdad on the same efficient European airline that I had used a year earlier. I was told it had discontinued flights to the Iraqi capital, because it feared that insurgents had obtained shoulder-held anti-aircraft missiles originally supplied to anti-Assad forces in Syria and would use them against commercial aircraft flying into Baghdad International Airport. Western support for the Syrian opposition may have failed to overthrow Assad, but it has been successful in destabilizing Iraq, as Iraqi politicians had long predicted.

The failure of the "war on terror" and the resurgence of al-Qaeda is further explained by a phenomenon which had become apparent within hours of the 9/11 attacks. The first moves from Washington made it clear that the anti-terror war would be waged without any confrontation with Saudi Arabia or Pakistan, two close US allies, despite the fact that without the involvement of these two countries 9/11 was unlikely to have happened. Of the nineteen hijackers that day, fifteen were Saudi. Bin Laden came from the Saudi elite. Subsequent US official documents stress repeatedly that financing for al-Qaeda and jihadi groups came from Saudi Arabia and the Gulf monarchies. As for Pakistan, its army and military service had played a central role since the early 1990s in propelling the Taliban into power in Afghanistan where they hosted bin Laden and al-Qaeda. After a brief hiatus during and after 9/11, Pakistan resumed its support for the Afghan Taliban. Speaking of the central role of Pakistan in backing the Taliban, the late Richard C. Holbrooke, US special representative to Afghanistan and Pakistan, said: "We may be fighting the wrong enemy in the wrong country."

The importance of Saudi Arabia in the rise and return of al-Qaeda is often misunderstood and understated. Saudi Arabia is influential because its oil and vast wealth make it powerful in the Middle East and beyond. But it is not financial resources alone that make it such an important player. Another factor is its propagating of Wahhabism, the fundamentalist, eighteenth-century version of Islam that imposes sharia law, relegates women to the status of second-class citizens, and regards Shia and Sufi Muslims as non-Muslims to be persecuted along with Christians and Jews.

This religious intolerance and political authoritarianism, which in its readiness to use violence has many similarities with European fascism in the 1930s, is getting worse rather than better. For example, in recent years, a Saudi who set up a liberal website on which clerics could be criticized was sentenced to a thousand lashes and seven years in prison. The ideology of al-Qaeda and ISIS draws a great deal from Wahhabism. Critics of this new trend in Islam from elsewhere in the Muslim world do not survive long; they are forced to flee or are murdered. Denouncing jihadi leaders in Kabul in 2003, an Afghan editor described them as "holy fascists" who were misusing Islam as "an instrument to take over power." Unsurprisingly, he was accused of insulting Islam and had to leave the country.

A striking development in the Islamic world in recent decades is the way in which Wahhabism is taking over mainstream Sunni Islam. In one country after another Saudi Arabia is putting up the money for the training of preachers and the building of mosques. A result of this is the spread of sectarian strife between Sunni and Shia. The latter find themselves targeted with unprecedented viciousness, from Tunisia to Indonesia. Such sectarianism is not confined to country villages outside Aleppo or in the Punjab; it is poisoning relations between the two sects in every Islamic grouping. A Muslim friend in London told me: "Go through the address books of any Sunni or Shia in Britain and you will find very few names belonging to people outside their own community."

Even before Mosul, President Obama was coming to realize that al-Qaeda–type groups were far stronger than they had been previously, but his recipe for dealing with them repeats and exacerbates earlier mistakes. "We need partners to fight terrorists alongside us," he told his audience at West Point. But who are these partners going to be? Saudi Arabia and Qatar were not mentioned by him, since they remain close and active US allies in Syria. Obama instead singled out "Jordan and Lebanon, Turkey and Iraq" as partners to receive aid in "confronting terrorists working across Syria’s borders."

There is something absurd about this, since the foreign jihadis in Syria and Iraq, the people whom Obama admits are the greatest threat, can only get to these countries because they are able to cross the 510-mile-long Turkish-Syrian border without hindrance from the Turkish authorities. Saudi Arabia, Turkey, and Jordan may now be frightened by the Frankenstein’s monster they have helped to create, but there is little they can do to restrain it. An unspoken purpose of the US insistence that Saudi Arabia, UAE, Qatar, and Bahrain take part or assist in the air strikes on Syria in September was to force them to break their former links with the jihadis in Syria.

There was always something fantastical about the US and its Western allies teaming up with the theocratic Sunni absolute monarchies of Saudi Arabia and the Gulf to spread democracy and enhance human rights in Syria, Iraq, and Libya. The US was a weaker power in the Middle East in 2011 than it had been in 2003, because its armies had failed to achieve their aims in Iraq and Afghanistan. Come the uprisings of 2011, it was the jihadi and Sunni-sectarian, militarized wing of rebel movements that received massive injections of money from the kings and emirs of the Gulf. The secular, nonsectarian opponents of the long-established police states were soon marginalized, reduced to silence, or killed. The international media was very slow to pick up on how the nature of these uprisings had changed, though the Islamists were very open about their sectarian priorities: in Libya, one of the first acts of the triumphant rebels was to call for the legalization of polygamy, which had been banned under the old regime.

ISIS is the child of war. Its members seek to reshape the world around them by acts of violence. The movement’s toxic but potent mix of extreme religious beliefs and military skill is the outcome of the war in Iraq since the US invasion of 2003 and the war in Syria since 2011. Just as the violence in Iraq was ebbing, the war was revived by the Sunni Arabs in Syria. It is the government and media consensus in the West that the civil war in Iraq was reignited by the sectarian policies of Iraqi prime minister Nouri al-Maliki in Baghdad. In reality, it was the war in Syria that destabilized Iraq when jihadi groups like ISIS, then called al-Qaeda in Iraq, found a new battlefield where they could fight and flourish.

It was the US, Europe, and their regional allies in Turkey, Saudi Arabia, Qatar, Kuwait, and United Arab Emirates that created the conditions for the rise of ISIS. They kept the war going in Syria, though it was obvious from 2012 that Assad would not fall. He never controlled less than thirteen out of fourteen Syrian provincial capitals and was backed by Russia, Iran, and Hezbollah. Nevertheless, the only peace terms he was offered at the Geneva II peace talks in January 2014 was to leave power. He was not about to go, and ideal conditions were created for ISIS to prosper. The US and its allies are now trying to turn the Sunni communities in Iraq and Syria against the militants, but this will be difficult to do while these countries are convulsed by war.

The resurgence of al-Qaeda–type groups is not a threat confined to Syria, Iraq, and their near neighbors. What is happening in these countries, combined with the growing dominance of intolerant and exclusive Wahhabite beliefs within the worldwide Sunni community, means that all 1.6 billion Muslims, almost a quarter of the world’s population, will be increasingly affected. It seems unlikely that non-Muslims, including many in the West, will be untouched by the conflict. Today’s resurgent jihadism, having shifted the political terrain in Iraq and Syria, is already having far-reaching effects on global politics, with dire consequences for us all. More

The above is excerpted from Patrick Cockburn’s book, Rise of the Islamic State (Verso, 2015).

 

 

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Targeted Killing of Terrorists

High technology enables the United States and other countries to kill specific terrorists with limited collateral damage. Yet, as Nicholas Rostow reminds us, just because targeted killings may be arguably legal and even ‘prudential’, that doesn’t mean they avoid certain costs.

The struggle against terrorism—more specifically, the effort to prevent terrorist attacks—has raised difficult legal and policy issues including so-called targeted killing, or the killing of specific individuals because of their involvement in terrorist organizations and operations. As we shall see, this form of targeted killing involves domestic and international legal authorities and policy and prudential issues. A substantial number of countries confronting what they consider to be terrorist attacks and threats engage in targeted killings. Each has to resolve questions about authorities and prudence because, while terrorists are always criminals, they also may be lawful military targets. The dual character of terrorists leads to the conclusion that, as a matter of policy, a state should weigh the totality of the circumstances and conclude that no other action is reasonable to prevent a terrorist attack before engaging in the targeted killing. Careful analysis in advance may preempt problems later.

This essay addresses the question principally from the American perspective. It examines the authority, as a matter of U.S. law, for the United States to kill individual terrorists and the international legal context for such operations. The operating premise is that the targeted killing of al Qaeda leaders is emblematic of the subject under review in contrast to such domestic police action against terrorists as the arrest, prosecution, conviction, and execution of Timothy McVeigh, who was principally responsible for the bombing of the Federal office building in Oklahoma City in April 1995.1 The essay concludes that authority in domestic and international law exists for such operations and that, as a policy choice, the United States would do well to apply the Geneva Conventions of 1949 in the conflict with terrorists whether or not it is legally required. In any event, policymakers need to weigh the consequences of targeted killing operations because, like all military operations, unforeseen results—positive and negative—are likely.

Authorities for Targeted Killing

As spokesmen for the U.S. Government have emphasized,2 America’s use of force against terrorists takes place in the context of “armed conflict.” For practical and legal reasons they distinguish the conflict with al Qaeda and similar organizations from counterterrorism law enforcement at home or in other countries, which principally involves the police. This delimitation is commonsensical. It is also important. One does not want the U.S. Government engaging in military operations on American soil absent extraordinary circumstances. Authority for using the military instrument abroad against terrorists in the context of “armed conflict” comes from the Constitution and statute, and the use of armed force needs to comply with the international law of armed conflict (also known as the laws of war or international humanitarian law).

More than 200 years of practice have confirmed that the President has the responsibility to direct the Armed Forces to defend the country. The President accordingly had constitutional authority to order counterattacks by U.S. forces against terrorists who had engaged in attacks against the United States and its citizens even before September 11, 2001.

Presidents George W. Bush and Barack Obama have not had to rely on their constitutional authority alone. After September 11, 2001, Congress gave the President broad authority

to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.3

This statute provided explicit authority for U.S. military operations in Afghanistan and against those the President determined were involved in the September 11 attacks. The words “necessary and appropriate” limit the use of the military instrument to those situations where police action, by the United States or the state in which the terrorist is found, is impossible. Had the perpetrators resembled Timothy McVeigh and been subject to arrest inside the United States, the use of the Armed Forces would have been neither necessary nor appropriate. One therefore should not expect remotely piloted aircraft attacks in London. In states unable or unwilling to take action to prevent their territories from being used by terrorists, the legal and practical situation is different. A use of force, as against Osama bin Laden, may be lawful as well as the only practicable course, especially when a host government withholds its cooperation. On balance, it became more important to the United States and to the international multilateral effort to suppress terrorism to capture or kill bin Laden than to be sensitive to a breach of Pakistan’s territorial integrity and amour propre.

The conduct of military operations pursuant to these constitutional and statutory authorities has to conform to U.S. legal obligations regarding armed conflict. In the main, the rules for American use of force are contained in the Geneva Conventions of 1949 and subsequent treaties to which the Nation is a party or, as in the case of some articles of the 1977 Protocols Additional to the 1949 Geneva Conventions, which Washington regards as accurate statements of the customary international law of armed conflict. In 2010 the State Department Legal Adviser stated that the United States applied “law of war principles,” including:

First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the subject of the attack; and

Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.4

In other words, if the target is lawful under the laws of armed conflict, a state may use weapons, including weapons delivered by remotely piloted, unmanned aerial vehicles, against such targets. In this sense, targeted killing is high technology sniping.

This analysis rests on the premise that the United States is in an armed conflict with al Qaeda as a result of the attacks of September 11, 2001, a conclusion that itself reflects a process of analysis. Under longstanding principles of international law, a state bears responsibility for uses of force from its territory about which it knew or should have known. That responsibility includes a duty to prevent and, if prevention proves impossible, suppress. When a state is unable or unwilling to discharge such international legal obligations, the victim state presumptively has rights of self-defense. Thus, when Afghanistan was the base from which the 9/11 attacks were conducted and when Afghanistan was unwilling or unable to take action against the perpetrators, the United States enjoyed the right to use force in self-defense to attack those actors in Afghanistan. This legal analysis provides the basis for the U.S. use of force in Afghanistan commencing in 2001.

Laws of War and Targeted Killing

Confusion has bedeviled discussion of the conflict between the United States and al Qaeda. Assuming that al Qaeda is a true nonstate actor, governments have had to decide whether the United States is in international armed conflict with al Qaeda and, if so, what rules apply. These questions are rooted in the language of the four Geneva Conventions of 1949.

By their terms, the Conventions apply to conflicts among the “High Contracting Parties” or to “armed conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties.”5 This language means, respectively, conflicts between or among states and civil wars.6 Based on that language, the U.S. Supreme Court determined that the conflict with al Qaeda was a global, noninternational armed conflict to which Common Article 3 of the Geneva Conventions of 1949 applied because that seemed to be the only part of the Conventions that could apply to nonstate actors.7 While the effort to avoid placing alleged terrorists in a legal no-man’s land is laudable, the Supreme Court’s effort in this regard involved intellectual incoherence. As it must, the executive branch adheres to the Supreme Court decision. At the same time, without violating that decision, the U.S. Government may follow an intellectually coherent and simpler approach than the Supreme Court’s by following the Geneva Convention lead.8

The Geneva Convention Approach

The Geneva Conventions, binding as they are on all states, provide a useful guide to governments. They do so whether one uses military or law enforcement instruments against terrorists. If a government treats terrorists outside its jurisdiction or the jurisdiction of a state capable of using the criminal law against terrorists as subject to the Geneva Conventions, then its course is clear. If it captures a terrorist fighter, that fighter may be prosecuted for violations of the Geneva Conventions and then returned to prisoner of war status once a sentence, if any, is served. Prisoner of war status ends with the end of the conflict. Today it is difficult to foresee an end to the U.S. conflict with al Qaeda notwithstanding the deaths of so many al Qaeda leaders and followers.

Treating terrorists as if they are not combatants and are not entitled to prisoner of war status may be legally correct; it nonetheless puts a government in a policy and legal straitjacket. Terrorists inevitably fail the requirements set forth in the third Geneva Convention to wear a uniform, carry weapons openly, obey the laws of war, and operate in an organized fashion under a commander responsible for his or her subordinates, with rigorous systems of command and control, in order to enjoy the privileged status of combatant and prisoner of war upon capture.9 The terrorists’ failure in these respects does not make it easier to deal with detainees, as the American experience during the past 11 years demonstrates. As a result, a new approach is needed. That approach should be rooted in the law and in common sense. The Geneva Conventions provide both.

For the United States, acting as if terrorists captured in battlefield conditions are combatants and therefore prisoners of war would have a number of benefits. First, it would limit challenges to the legal status of detainees because they would not be held in what might appear to be legal limbo. As a result, whether they were held in prisoner of war facilities within the United States or at Guantánamo Bay would not matter in legal terms. Detainees would not acquire more rights by being held as prisoners of war within the United States than they do in Guantánamo Bay, and the administration should be able to close the prison facilities there without increasing its legal exposure. Second, it would clarify the status of prisoners for prison guards by making clear that the prisoners were not in a penitentiary status unless convicted of a crime. Third, it could improve the international reputation of the United States, which stands sullied as a result of allegations of torture and questions about its authority to hold alleged terrorists indefinitely, even those who might be acquitted at trial.

Since 9/11, the United States has traveled far in its quest to diminish, if not eliminate, the risk of terrorist attack. In the process it has revealed much about its willingness to engage in targeted killing and the conclusion that this tactic is useful and “wise” as well as legal.10 The argument for wisdom is that technology permits such a high degree of accuracy that collateral damage—the killing of bystanders—and the risk to American lives are reduced. The third test of wisdom is an act’s consequences. The wise strategist will weigh consequences of chosen tactics. For example, the negative consequences of the frequent U.S. use of remotely piloted aircraft to attack al Qaeda in Pakistan in 2011 led to an intense “Pakistani animus toward unilateral U.S. action [with] huge implications for America’s counterterrorism aspirations in the country.”11 To avoid negative consequences does not require inaction, but rather an effort at forethought and foresight. It is something that cannot be guaranteed even if one abides by the law. So far the United States has followed U.S. and international law by engaging in targeted killing as a combat tactic against military targets. Keeping to this line will be clarifying and simplifying even though one may argue that the law does not require treating terrorists as if they were military targets. Lawfulness by itself does not guarantee wisdom. But it is a good starting place. JFQ More

 

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