The Continuing Predator Drone Campaign in Pakistan

Karen DeYoung has a very interesting account of the on-going Predator drone campaign in Pakistan, on the front page of the Monday, June 1, 2009 Washington Post, “Al Qaeda Seen as Shaken in Pakistan.”

The story is sourced to US intelligence and military officials, as well as some Pakistani officials, and recounts how the Pakistani army’s campaign to retake the Swat valley from the Taleban puts Al Qaeda under pressure in ways that draws them into the open – or anyway, the open of telecommunications and cyberspace:

“They’re asking themselves, ‘Are we going to contest’ ” Taliban losses, [a US counterterrorism official] said, predicting that al-Qaeda will “have to make a move” and undertake more open communication on cellphones and computers, even if only to gather information on the situation in the region. “Then they become more visible,” he said.

As they become more visible, they run greater risks of being identified as targets for Predator strikes.  The Pakistani army campaign is the equivalent of kicking the anthill, and then Predator strikes become a means to attack specific targets once revealed.  The strategy has its problems:

It remains unclear whether U.S. intelligence and Pakistani ground forces can capitalize on such opportunities before they vanish. Chances to intercept substantive al-Qaeda communications or to take advantage of the movement of individuals are always fleeting, according to several officials of both governments, who spoke on the condition of anonymity to discuss counterinsurgency operations and the bilateral relationship. 

The article does an excellent job of discussing the overall Predator campaign in Pakistan.  It points out upsides and downsides, but notes that while there is always criticism of civilian casualities and claims of backlash, the Obama administration and its military and counterterrorism officials remain convinced that it is a crucial strategy.  

Since last fall, the Predator drone attacks have eliminated about half of 20 U.S.-designated “high-value” al-Qaeda and other extremist targets along Pakistan’s border with Afghanistan, U.S. and Pakistani officials said. But the attacks have also killed civilians, stoking anti-American attitudes in Pakistan that inhibit cooperation between Islamabad and Washington.

As for the overall campaign under the Obama administration, “judging by reports from the region through late April, the Obama administration authorized about four or five Predator attacks a month, maintaining a pace set by the Bush administration in August.”  Interestingly, the article quotes various unnamed officials as suggesting that the Swat valley operation by the Pakistani army, by forcing Al Qaeda operatives to become more visible, has allowed drone targeting to become more specific and narrow:

A senior Pakistani official said the rate has not diminished in recent weeks, although “you don’t hear so much about it” because the strike areas have been more isolated.

“There are better targets and better intelligence on the ground,” the Pakistani official said. “It’s less of a crapshoot.”

A second U.S. military official agreed, saying, “We’re not getting civilians, and not getting outrage beyond the usual stuff.”

The article adds useful details of how the overall drone campaign is run.  It is operated by the CIA:

The CIA, which does not publicly acknowledge the attacks, operates the aircraft, chooses the targets — ideally with the cooperation of Pakistani intelligence on the ground — and has White House authority to fire the missiles without prior consultation outside the intelligence agency.

Although the Bush administration authorized ground attacks in Pakistan, using special forces and special operations teams:

The Bush administration last summer also authorized covert U.S. ground raids inside Pakistan, but Pakistani outrage after a single attack in September led to their suspension. Although U.S. Special Operations teams are on continuous alert on the Afghan side of the border, the Obama administration has not authorized any ground operations in Pakistan, and the military is divided over their advisability. “We ask all the time,” said a military official who favors such raids. “They say, ‘Now is not a good time.’ “

That is the strategic side, and the general conclusion of US officials and, so far as I can tell, strongly supported by the Obama administration, both during the presidential campaign and no less so today, is simply:

The CIA considers the Predator the most effective tool available in a conflict in which the U.S. military is barred from conducting offensive operations on land or in the air. “We’re not at the point yet where there’s a sense that there’s anything that could replace that,” the second military official said of the drone attacks.

From the legal side, however, I wonder if the Obama administration is cognizant of the kind of pushback that the soft-law community is gearing up to offer.  The position of the human rights community continues to harden, in the sense of treating targeted killing as extrajudicial execution under human rights law, and to pushing that conclusion onto the United States through four legal premises:

• Extraterritorial application of the ICCPR and other human rights treaties; 
• application of human rights law even within armed conflict governed by international humanitarian law; 
• ever stricter limitations on the legal scope of an armed conflict with respect to geography and theatre; and 
• standards of “direct participation in hostilities” in armed conflict that, in combination with human rights law in armed conflict, make it legally very difficult to target individuals using standoff platforms.

Obviously OJ readers have many views on these legal premises.  My point here, instead, is that there is not much indication that the Obama administration is aware or, anyway, seriously taking account of how acceptance of these abstract propositions might have very specific legal consequences for its weapon of choice, now and into the future, with respect to Al Qaeda in Pakistan but also with respect to future threats from entirely different sources, and whether in armed conflict governed by international humanitarian law or not.  These are each propositions that the Obama administration might want to accept on general human rights or humanitarian grounds, out of political sense of solidarity with transnationalism, on all sorts of good-guy, engage with human rights, get with the allies and with the transnational soft-law community – and just assume that none of this means much for actual operations because, after all, it is the Obama and not the Bush administration.  

The Obama administration correctly, in my view, understands that targeted killing is a more humanitarian strategy than leveling places with artillery.  It is not just effective as a small-wars strategy; it has large humanitarian attractions. There are unfortunate civilian deaths, but they are typically measured in the tens rather than the thousands.  It is right about the humanitarian calculation of targeted killing – but it would be profoundly mistaken to assume that the soft-law community of international law sees it that way.  

On the contrary, to judge by the conversations I have with considerable frequency, I’d say at the affective level, targeted killing is seen not as potentially more humanitarian because more discriminating – what the human rights community, back in the day, fifteen or twenty years ago, demanded of NATO militaries – but instead as somehow more wicked.  It’s wicked because it somehow seems cowardly to target using standoff missiles against particular targets.  To borrow from Gabriella Blum – I hope she won’t mind me quoting a conversation – it removes the anonymity that has always seemed somehow crucial to war, and is somehow seen as “unfair” by not putting your own forces at risk.  Though why this is any different from leveling a town – Grozny – by shelling it from afar is not clear to me.  To be sure, as targeting technology permits greater discrimination, it is perfectly natural to ask questions about how targets are selected; they are, however, two different problems.  The first is discrimination in the sense of reducing collateral damage to third party innocents, which is what drone technology is mostly about.  The second, however, is the intelligence driven decision to know that this person is the person to be targeted – not generally a question in overt, open armed conflict traditionally, in which combatants where uniforms and are identified as targets as such.  It becomes much harder still as the soft-law community presses for both more shades of grey in treating someone as a combatant and presses for more and more restrictions on when and where they can be targeted as such.

The Obama administration, however, like ever other administration I can remember going back to the 1970s, remains merely reactive to these ideological and intellectual currents.  I don’t think it understands how tenacious the ICRC, for example, seems to be on pressing its increasingly merely-another-NGO-advocate views of direct participation in hostilities – rumor has it that a very sizable number of the experts on its years-long study have dissociated themselves from the non-public draft report, and yet the ICRC seems hell-bent on pushing it forward anyway.  

The Obama administration can drift along with such trends – and wake up to discover, perhaps in its second term, that it has drifted into an international law position that treats its preferred strategy as a crime.  As I remark in a forthcoming book chapter, as the strategic rationales grow, the legal space shrinks.  But a lot of the shrinkage comes from inattention to the consequences of apparently unrelated, abstract legal propositions.i

(Update: Thanks DMV for the link to an interesting blog post critical of the WP article discussed above.)