International Law: LOAC

Drone Strike Errors and the Hostage Tragedy: Mapping the Issues in the Newly-Catalyzed Debate?

By Robert Chesney
Friday, April 24, 2015, 2:57 PM

The use of lethal force (whether via armed drone, manned aircraft, cruise missile, helicopter assault, etc.) has been a cornerstone of U.S. counterterrorism policy for many years, both in places where we have ground combat deployments and places where we do not. Throughout this period, the legality, efficacy, wisdom, and morality of this practice has been the subject of intense scrutiny and debate. Nonetheless, the kinetic option has proven remarkably durable over time (especially as compared to its sibling, the use of non-criminal detention).

A notable exception arose with the killing of U.S. citizen Anwar al-Awlaki. The politics of that drone strike proved to be quite different than most, and the result was more intensive scrutiny, including a surge of congressional interest. Perhaps for this reason, among others, lethal force policy eventually was adjusted to some degree---or at least a serious effort was made to convey that impression---as memorialized in a Presidential Policy Guidance and accompanying speech at National Defense University in May 2013, with a specific focus on articulating policy constraints for the use of lethal force in overseas locations that are not "areas of active hostilities."

Are we now in the midst of another catalytic moment for policy change? The President's decision to declassify and discuss a CIA drone strike last January (the "January Strike"), one that unwittingly killed two western hostages in the course of attacking a quartet of al Qaeda members in Pakistan, has touched off a fresh wave of commentary and criticism. Two of the best examples include Scott Shane’s New York Times piece titled “Drone Strikes Reveal Uncomfortable Truth: U.S. Is Often Unsure About Who Will Die,” and Greg Miller’s Washington Post piece titled “Hostages’ Deaths Raise Wider Questions About Drone Strikes’ Civilian Toll.”

What precisely is at stake in these stories and the fresh wave of criticism they embody? It seems to me there are many distinct issues in play here, and that it might be useful to map them out individually. Towards that end:

1. Is There a Systematic Problem with Drone Strikes and Collateral Damage Estimation?

There are many sub-issues that lurk under the heading of collateral damage in this setting. Here, I want to focus on a particular one, saving other issues to be addressed below: Does the January Strike provide evidence that we have a systematic problem when it comes to accurately estimating the collateral damage (i.e., harm to civilian bystanders) that will be incurred if a particular attack takes place? This question in turn comes in two flavors: are we as capable as we should be, when it comes to (i) determining how many people are present within the expected blast radius and (ii) knowing who those people are? The January Strike puts both these questions in play, since it appears CIA was unaware that two additional people were in the building with the four targets, let alone that they were the two hostages.

Needless to say, this one instance can only raise the question, not prove the point. If there is indeed a recurring problem of this kind, however, and if there are reasonably available technological fixes in terms of the sensors brought to bear in such cases, then one conclusion may be that there is a pressing need to take the steps necessary to fund and deploy those fixes. Of course, such a showing may also raise complex questions about the extent to which drone strikes conform to the law of armed conflict principle of precaution during attack.

2. Is There a Systematic Problem with Positive Identification of Lawful Military Objectives?

The next question has to do with distinction: Do we have a systematic problem in terms of inaccurately identifying the objects of attack, mistaking non-directly-participating-in-hostilities civilians for DPH'ing civilians or combatants? This question also comes in two flavors. Flavor one asks whether we make factual mistakes in categorizing persons, whereas flavor two asks whether the U.S. government's position on the legal availability and definitional scope of these categories (combatant, DPH, etc.) are plausible.

The January Strike story does not add much as to the legal issue, since it is simply another instance in which the United States believed it had LOAC authority to target al Qaeda members, something that has long been disputed in any number of similar instances. And I'm pretty sure it adds nothing as to the factual issue: the factual problem here was failing to detect that two additional people were present (and that they were hostages), not that the four people intentionally targeted proved not to be associated with al Qaeda as the CIA had believed.

3. Is There a Systematic Problem with Missile Accuracy?

Since questions of accuracy are much in play in these stories, and many defenses of the drone program emphasize the accuracy of drones as weapons platforms, it is worth asking whether this story in some fashion shows drones to be less accurate than claimed in sheer technical terms. I've not seen anything to suggest that this is so.

4. Is There a Problem with the Institutional Role of CIA?

Does the January Strike suggest that it would be better to have DOD (JSOC, or otherwise) administer drone strikes in all cases, cutting CIA out? I don't think so. To make that argument, it is not enough to show that there were avoidable factual mistakes made in this instance, or even to show that such mistakes are made more generally by the CIA; one must also show they are less likely to occur with DOD control. It might be that this case could be made, but I've not seen evidence to that effect.

5. Is There a Problem with the Underlying Legal Claim of an Armed Conflict?

Does the January Strike story show us anything new with respect to the debate surrounding the U.S. government's core claim that there exists an armed conflict, triggering LOAC, with al Qaeda? Or the companion claim that this conflict exists where al Qaeda exists, irrespective of which location an AQ member happens to be at the time? No and yes. No, in the sense that this particular example is no different than an endless number of others that arise out of Pakistan (and Yemen, and Somalia). Yes, in the indirect sense that the fact pattern in this instance has proven to have special resonance, and thus this instance is helping to focus attention on this long-standing legal debate.

6. Is There a Problem with the Obama Administration's Policy Constraints?

The media has focused on the President's self-imposed policy constraint (see the PPD and the NDU speech linked above) whereby strikes occurring outside areas of active hostilities should not occur unless it is nearly certain there will be no collateral damage. Several points follow. First, even if held strictly to that standard, mistakes still can occur; the issue is whether due care was exercised in this case, which I'm in no position to judge. Second, it is interesting to ponder whether the Pakistan border region is categorized by the administration as outside of the active hostilities zone. If it is not, then this standard would not have applied, since it is not a standard imposed by LOAC.

7. Is There a Problem with the Policy's Net Strategic Impact?

Does the January Strike add to the debate as to whether the drone program is worthwhile, as a matter of its net impact? I'm genuinely unsure. It certainly is having an unusual impact on domestic politics, and as a result it is catalyzing thinking about the costs of collateral damage beyond what the public may normally engage in when such deaths don't involve Americans. This is turn may impact impressions of the net impact of the program as a least while the story remains on the front pages.