Signature Strikes: Everything Old Is New Again

by Kevin Jon Heller

I’m currently writing an article for the Journal of International Criminal Justice on the legality of signature drone strikes under international humanitarian law and international human rights law.  I will link to the article when it’s done (two weeks or so), but I couldn’t resist posting the following quotes — the first from the New York Times, describing the Obama administration’s definition of “combatant” for purposes of signature strikes; the second by Lt. William Calley, whose orders led to the My Lai massacre during the Vietnam War:

NYT: “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.”

Lt. Calley: “If those people weren’t all VC then prove it to me. Show me that someone helped us and fought the VC. Show me that someone wanted us: one example only! I didn’t see any… Our task force commander’s staff said it’s a VC area and everyone there was a VC or a VC sympathizer. And that’s because he just isn’t young enough or old enough to do anything but sympathize.”

Bad ideas, unfortunately, never go out of style.

http://opiniojuris.org/2012/10/07/signature-strikes-everything-old-is-new-again/

7 Responses

  1. The only problem with using a quote from Calley is that it might reinforce the idea that both the My Lai massacre and Calley’s thoughts were exceptional, yet in many respects they were not. Indeed, Calley’s reasoning was wholly derived from those up the chain of command, as is clear from the remark: “Our task force commander’s staff said it’s a VC area and everyone there was a VC or a VC sympathizer.” In fact this represents a fairly widespread mindset at the time, something very clear from interviews then and later with numerous Vietnam War veterans, particularly those who came out against the war. In Vietnam, it was intrinsic to the logic of free-fire zones, strategic hamlets, saturation bombing…and was reinforced by the brutalizing and dehumanizing effects of battle upon soldiers (as discussed, among others, by Robert Jay Lifton).

  2. PSO,

    Absolutely — Sam Moyn made the same point to me.  I discuss free-fire zones in the article; I just liked the Calley quote because of its eerie parallels with signature strikes.

  3. I recommend caution in describing what is and what is not the USG position. Assuming there is a source document, at best what we have is the understanding of that document by unnamed individuals (do they exercise any role in the process?), that they have apparently communicated to a reporter, that the reporter has then written. It may be that what was ultimately written in the NYT is not exactly what appears in the orignal document (assuming the existence thereof).

    For example, I hear many references to Turkey’s counter-battery fire into Syria being ‘retaliation’. I have been unable to locate any orignal statements from Turkey to, for instance, the UNSC, but I hope they do not describe it has ‘retalation.

  4. Ian,

    I agree — but we also cannot permit the USG’s lack of transparency concerning the criteria it uses for signature strikes to insulate it from criticism. Until such time as the USG formally disavows the statements its officials make to reporters and explains its actual position, we are entitled to take those officials at their word.

  5. Military legal advisers employ principles (that offer a the legal framework for assessing the legality of employing military force to achieve an objective) prior to targeting. This isn’t necessarily the same as the battle damage assessment made after targeting. I read the article in that context.

    I am reasonably certain Calley did not check with appointed legal advisors before he razed the village. So I wouldn’t say nothing has changed. 

  6. Re:”The only problem with using a quote from Calley is that it might reinforce the idea that both the My Lai massacre and Calley’s thoughts were exceptional, yet in many respects they were not.
     
    Colin Powell was put in charge of investigating Spc. 4 Tom Glen’s letter to Gen. Creighton Abrams complaining about members of his unit who “for mere pleasure, fire indiscriminately into Vietnamese homes and without provocation or justification shoot at the people themselves.” If Powell had conducted a proper investigation, the details of the My Lai massacre would have come to light much sooner, but he dismissed the allegations and closed the unit-level official investigation.
     
    Powell’s autobiography actually contains a “money quote” that illustrates the point KJH is trying to drive home:

    I recall a phrase we used in the field, MAM, for military-age male. If a helo spotted a peasant in black pajamas who looked remotely suspicious, a possible MAM, the pilot would circle and fire in front of him. If he moved, his movement was judged evidence of hostile intent, and the next burst was not in front, but at him. Brutal? Maybe so. But an able battalion commander with whom I had served at Gelnhausen, Lieutenant Colonel Walter Pritchard, was killed by enemy sniper fire while observing MAMs from a helicopter. And Pritchard was only one of many. The kill-or-be-killed nature of combat tends to dull fine perceptions of right and wrong.
    – – Colin L. Powell, My American Journey, page 224
     
    That isn’t a description of “combat”. That’s a description of how the US armed forces ended up deliberately murdering many of the very same civilians that they were supposed to be protecting from communist-backed aggression.
     
    Re: “Fire Fire Zones”. Unfortunately, words used in context sometimes convey an unintended meaning.
     
    In the post Vietnam era, the DoD stopped utilizing the term “free fire zone” in its fire control lexicon. That was due to the common misconceptions that surrounded its intended meaning. In many situations there are risks of casualties from crossfire originating from adjacent friendly forces. So prior coordination is required before units can safely open fire on any military objective. Free fire zones did not imply any authorization to violate the laws and customs of war which prohibited attacks on unarmed civilians or persons who were hors de combat. They simply allowed valid military objectives to be targeted in isolated areas without further coordination between the unit and a higher echelon or South Vietnamese fire control center.

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