The foggy
numbers of Obama’s wars and non-wars
President Obama delivers a prime-time address from the White House on Sept. 10, 2014, vowing to target the Islamic State with airstrikes "wherever they exist." (Saul Loeb/AFP/Getty Images)
As the Obama administration prepares
to publish a long-delayed accounting of how many militants and noncombatant
civilians it has killed since 2009, its statistics may be defined as much by
what is left out as by what is included.
Release of
the information was first envisioned three years ago this month, as part of
strict new guidelines President Obama announced for the United States’
controversial use of drones and other forms of lethal force to battle terrorism
abroad. Such operations, Obama said in a 2013 speech at the
National Defense University, would also be subject to new
transparency and oversight.
The death
tolls, like the guidelines, will cover places where the United States
conducts airstrikes but does not consider itself officially at war: Yemen,
Somalia and Libya. They are likely to exclude Pakistan, where the CIA has
conducted hundreds of drone strikes but which the administration has long
labeled part of the Afghanistan war theater. The United States still does not
publicly acknowledge CIA attacks inside Pakistan, although the Pentagon
announced Saturday that it had targeted Taliban leader Akhtar Mohammad
Mansour in Pakistan.
Not all strikes in the included
countries are considered counterterrorism actions, which must be approved by
the highest level of government. With U.S. Special Operations forces deployed
to all three places, some strikes are defined as self-defense and can be
approved by the defense secretary.
That was the
case on March 5 in Somalia, when manned and unmanned aircraft killed an
estimated 150 al-Shabab
militants at a training camp, the largest such non-war strike
ever, and on May 12, when U.S. forces called in an airstrike after African
peacekeeping troops they were accompanying were attacked by militants west of
Mogadishu, the Somali capital.
The totals
will almost inevitably be challenged by independent groups that keep their own
tallies and for years have charged that the administration undercounts civilian
deaths caused by drone strikes.
Beyond debates over statistics,
there are broader questions about how, when and where Obama’s guidelines apply,
how they have changed amid a mutating threat, including the growth of the
Islamic State, and what standing they will have after the president completes
his term in January.
“My hope is, is that by the time I
leave office, there is not only an internal structure in place that governs
these standards we’ve set” but also an “institutionalized process . . . so that
people can look” at actions taken by their government on an “annualized basis,”
Obama said last month.
The pending announcement will also
be accompanied by additional information on the guidelines, perhaps elevating
them to an executive order, according to several senior administration
officials who spoke on the condition of anonymity to discuss information that
has not been made public.
How Obama plans to impose the
standards he has set on future administrations is unclear.
“We have a system for making rules
that will bind across time that involves statutes passed, treaties adopted,
constitutional change, etc.,” said Robert M. Chesney, associate dean and
director of the Robert S. Strauss Center for International Security and Law at
the University of Texas’s law school.
“It’s just not possible, as a legal
matter, for decisions of one administration to become binding in a legal sense
on their successors — any more than Obama was bound” by policies and rules
imposed by his predecessor, George W. Bush.
At the time the guidelines were
written, drone-fired missiles appeared to have become Obama’s counterterrorism
weapon of choice. By early 2013, he had launched hundreds of strikes, most of
them in Pakistan, compared with around 50 throughout the Bush administration.
But the president and his top
advisers were concerned that the program had too few controls and publicly
stated justifications under international law. The secrecy that necessarily
surrounded it — virtually all Pakistan strikes have been conducted by the CIA
and are considered covert actions — limited the ways in which they could defend
it. While acknowledging that some civilian deaths had occurred, they said that
claims of hundreds or more deaths by non-government organizations have been
wildly inaccurate.
Obama himself recalled the dilemma
in a news conference last month, saying that “there’s been, in the past,
legitimate criticism that the . . . legal
architecture around the use of drone strikes or other kinetic strikes wasn’t as
precise as it should have been, and there’s no doubt that civilians were killed
that shouldn’t have been.”
The beginning of 2013 seemed the
right time to promulgate new rules. With the end of the Iraq War, the planned
U.S. withdrawal from Afghanistan, and the perceived diminishment of al-Qaeda,
senior administration officials said, there would be less need for drone
strikes.
The goal was to establish a
long-term legal and procedural framework for those occasions that required
them. With operations in Pakistan gradually ending, the CIA would be eased out
of the business of lethal attacks, and they would become the sole
responsibility of the military.
The guidelines were only applicable
to non-war zones — places defined as “outside areas of active hostilities.” A
policy term that does not appear in the international laws of war, the concept
can theoretically be applied anywhere in the world and has been a subject of
sharp debate among international-law experts.
The United States justifies its
counterterrorism attacks under a variety of domestic and international laws.
The Authorization for Use of Military Force passed by Congress in 2001 allows
force to prevent further attacks by al-Qaeda, responsible for the Sept. 11
attacks that year, and the government for more than a decade has construed this
to include al-Qaeda’s “associated forces.”
A complete list of “associated
forces” has never been released, although both Bush and Obama have said it
includes Yemen-based al-Qaeda in the Arabian Peninsula, or AQAP, and Obama has
said individuals in al-Shabab with AQAP ties can be subject to counterterrorism
strikes. The administration also considers the Islamic State part of al-Qaeda, despite the bitter rivalry between the groups, while it has
unsuccessfully pressed Congress for a new AUMF to cover the Islamic State more
specifically.
Article II of the Constitution gives
the commander in chief powers to defend the country. It is a provision
frequently cited by Bush and eschewed by Obama at the beginning of his
administration, but later incorporated into his lexicon of legal
justifications. International law allows countries to defend themselves and
their allies in the event of an “armed attack,” which the government has
interpreted as extending to preventive defense against defined terrorists
wherever they are located.
When the administration announced
its new rules for counterterrorism, it said they went beyond those required by
law. Under the 2013 guidelines, deadly attacks would be used only against those
groups and individuals posing a “continuing, imminent threat to U.S. persons,”
a much smaller universe than the former “U.S. interests.” Only the president
could approve such strikes, and the go-ahead would be given only when there was
a “near certainty” of no civilian deaths.
Since the
guidelines were adopted, and released in an unclassified
summary, the terrorism landscape has changed considerably, and the
administration has struggled to keep up. Two countries — Iraq and Syria — have
been added to the list of designated war zones, where the military and the
international laws of war impose somewhat different rules. The Islamic State,
officially born in 2014, has spread its tentacles across the Middle East and
North Africa.
“We are continuously refining,
clarifying, and strengthening our standards and procedures for reviewing and
approving direct action against terrorist targets located . . . outside
areas of active hostilities,” a senior administration official said of the
rules, officially known as the counterterrorism PPG, for Presidential Policy
Guidance.
The reduced number of lethal actions
predicted three years ago by administration officials has come to pass, but
almost all of the reduction has been in Pakistan, where the number of strikes
has steadily fallen from a high of more than 100 in 2010 to only two reported
by outside observers so far this year before Saturday’s military strike.
But the
focus of U.S. activities has expanded elsewhere, outside the war zones. In
Yemen, the number of airstrikes peaked in 2012, fell over the next two years,
and has begun to rise again this year. In Somalia, it has increased steadily
since the PPG was first announced. Two airstrikes on alleged terrorist targets
this year in Libya were the first since the 2011 joint air offensive by the
United States and European allies that ousted Moammar Gaddafi.
For those outside the government
trying to tally them, the number of recent counterterrorism strikes has been
muddied by the separate category of defense for Special Operations forces on
the ground and the fact that some strikes, but not all, are publicly announced.
In emailed responses to written
questions, the Defense Department said it keeps no central list of strikes
“outside areas of active hostilities.” Some are announced by the Pentagon, some
by Central Command in charge of Yemen, and others by the Africa Command.
Some are not made public at all,
“consistent with operational security,” the response said. The CIA, whose drone
strikes remain secret, is still thought to be operating drones in Yemen.
Since the beginning of November,
official releases have documented about half of more than 30 U.S. strikes —
more than half in Yemen, two in Libya and the rest in Somalia — as compiled by
the Bureau of Investigative Journalism, one of several organizations that count
them based on local reporting and other sources. Independent counts of civilian
deaths in individual operations are zero or in low single digits, far reduced
from previous years’ tallies.
“We are committed to transparency,”
the Defense Department said. “While not all strikes are announced or publicly
acknowledged in real time, information on all of our strikes taken outside
areas of active hostilities will be aggregated for release in future annual
releases.”
Julie Tate contributed to this
report.
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"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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