No Longer A Debate About Targeted Killings

(CBS)  Hina Shamsi is a senior advisor to the Project on Extrajudicial Executions at the NYU School of Law

There was a lot of uproar last week about a secret CIA assassination plan that was apparently never implemented, but remarkably little discussion of CIA operations that have killed hundreds of people in Pakistan in the last year alone.

These killings, in which the United States targets drone strikes at specific individuals, are deeply controversial: innocent civilians have allegedly died and the legality of the killings is unclear. Just as Abu Ghraib became the face of U.S. interrogation policy in Iraq, so the specter of hundreds of dead civilians threatens U.S. counter-terrorism efforts in Pakistan.

Yet there has been no real domestic public debate or meaningful congressional oversight over targeted killings, even though their strategic and policy consequences are hotly contested. CIA Director Leon Panetta, for example, gave a speech in May 2009 in which he said that "[Drone] operations have been very effective because they have been very precise in terms of the targeting and it involved a minimum of collateral damage."

But a month later, David Kilcullen, a former senior counterinsurgency advisor to the Army told Congress that, "Since 2006, we've killed 14 senior Al Qaeda leaders using drone strikes. In the same time period, we've killed 700 Pakistani civilians in the same area. The drone strikes are highly unpopular. . . . [a]nd they've given rise to a feeling of anger that coalesces the population around the extremists."

It's impossible to assess who is right. Because the operations are classified, we do not know the most fundamental facts about the targeted killing policy, including the number and identity of the people targeted, and how many of the dead are civilians.

Even without precise numbers, it is clear that civilian casualties, unsurprisingly, have a negative impact. In Pakistan, America's most critical counter-terrorism ally, the Zardari government's apparent inability to stop the attacks - and allegations that it has secretly agreed to them - threatens the government's already shaky stability.

Perhaps the best evidence that targeted killings hurt humanitarian and counter-terrorism goals comes from Afghanistan. In July, Army General Stanley McChrystal, the top U.S. commander in Afghanistan, told troops to "back down" when there is a risk that civilians will be killed, even if that means enemy Taliban fighters escape. National Security Adviser James L. Jones told McClatchy at the time, "In one mishap you can create thousands more terrorists than you had before the mishap." Why does this reasoning not apply to Pakistan?

Even the legal basis for the targeted killing policy in Pakistan is shrouded in secrecy. Is the CIA operating under the laws of war or some other law? Under the laws of war, only organized armed forces can kill during hostilities; civilian agencies like the CIA cannot. Who reviews CIA target selection and on what criteria? Unlike the military, which has the laws of war to guide it, we simply do not know how the CIA chooses targets and how many civilian bystanders it decides can be killed before it suspends an airstrike.

Why does the United States think it has the legal right to engage in killings in a country with which it is not at war? Does the Obama administration believe, as the Bush administration did, that the United States is "at war" with al Qaeda, wherever and whoever they are? If so, this argument threatens to make the entire globe part of the "battlefield." It risks eviscerating carefully drawn categories the international community - often led by the United States - has developed over decades to minimize civilian harm and to protect the right to life of millions around the world.

Who, in any event, is a combatant in such a global war? It is now a cliché to point out that members of al Qaeda do not wear uniforms and do not function like a regular army - that is why they are not entitled to prisoner of war status. But if they are not combatants, they are civilians and, under the Geneva Conventions, civilians can only be killed when they are "directly participating in hostilities."

The International Committee of the Red Cross recently clarified the meaning of direct participation in hostilities. Its guidance answers such questions as when it is legally permissible to target a member of the Taliban who is a farmer by day but who lays explosives at night. Because of secrecy, we do not know if the United States is abiding by these principles.

The issue comes down to this: It is not enough for decision-makers to say "trust us." The stakes are too high and no government is infallible. To take just one example, in 2003, the CIA kidnapped a German citizen, Khaled el-Masri, from Macedonia and subjected him to five months of torture in a secret prison in Afghanistan. His turned out to be a case of wrongful identify. Mr. el-Masri is alive to tell his story. Victims of targeted killings do not have that option.

Targeting mistakes, more civilian deaths and policies that are illegal either in perception or in fact could result in terrible blowback. The only way to stop that from happening is for the government to clarify the international legal standards under which it acts, and to provide information about who is targeted and the consequences of any attack. The targeted killing policy needs to come out of the shadows.


By Hina Shamsi

[TickedOff1]

Laughing out loud, what debate. Should be using tactical nukes and get it over with. War is war and there is only one way to fight it. Get it over with as fast as possible by any means available. Trying to make war humane is an oxymoron. Whoever says they want to destroy us should be killed by whatever means is possible as soon as possible and if residents of another country are killed in the process, too bad. Apparently protecting our enemies is more important than protecting their own citizens.

[tom_gwynn]

The author also neglects to mention that secreting military assets with things normally immune to attack obviates the immunity. For example if you have a hospital which is normally immune to attack, and you put a howitzer on top of the hospital, the immunity of the hospital is destroyed. The howitzer and the hospital are now a legitimate military target. Likewise, secreting your military commanders in a civilian population places the population at risk of legitimate military strikes. The war crime in this case is that of the side which is using immune civilians to shelter its military assets. Obviously the US needs to keep civilian casulties as low as possible out of its own selfish interests if nothing else. But this is clearly an evolving area of war law, because the world really hasn't had to deal with something like Al Queda before. Essentially Al Queda makes war in complete defiance of the rules of war; it is an army of war criminals. Every single tactic it relies on to further its aims is in fact a war crime. We cannot allow Al Queda to use the protections of the rules of war to destroy the civilization the rules of war were meant to protect.

[nor-one]

Is that why the US used cluster bombs on Iraq initially? Dropping a cluster bomb on a city isn't exactly trying to minimize civilian casualties! It is however a great way to make terrorists.

[tom_gwynn]

Are you going to back that one up with specifics, nor-one? There was very little fighting in the Iraqi cities at first, which is why our troops were pulling down statues when they should have been blowing up all the arms depots scattered all over the country that would later arm the militants. Not their fault, of course; they went in woefully understrength thanks to "shock and awe" Rumsfeld.

[nihilist66]

What the writer failed to even consider is the high probability that the the taliban/insurgents specfically use human shields. Using human shields is a war crime. However, the writer may believe that the taliban/insurgents are less than human, and therefore, not responsible for their actions. No other country goes to such great lengths to minimize collateral damage, even to the extent it puts U.S. soldiers at greater risk and this writer, utilizing the same freedoms that soldiers and marines die for every day, has the gaul to criticize the "alleged" targeting of civilians. Here is a suggestion, Shamsi, go to Iran and do a story there. See how much freedom of expression you have under Sharia law, which is what the Taliban envisions as the "ideal" policy of state.

[1notrub11]

I agree with every comment nihilist66 has posted. He/she makes excellent points that have been totally ignored by the author of the article, the human shield issue perhaps being the strongest.
The fact that locals in Pakistan have attempted now to counter the Taliban in many locations says to me that those "guests" were never wanted there in the first place. Anyone who is harboring them, by now, must know there is a risk doing so.
You certainly don't see the coalition forces using human shields.

[tincup356]

Stop the lie wars ,,,they have cost enough and have accomplished NOTHING,,,,but debt and death.

[nihilist66]

Not true, since I was in Afghanistan, more girls were allowed to go to school than when the Taliban was in power. In the village, the children were able to play with toys and fly kites, something else they were unable to do while the Taliban controlled the government. Tincup prefers women beating, child subjugating governments. Hey, tincup, wear a Burqa in 120 degreee heat and study the koran.

[marine1957]

Hina Shamsi is a senior advisor to the Project on Extrajudicial Executions at the NYU School of Law

Almost all intrusions into the running of a war by
"POLITICIANS" who will accept kickbacks from anybody,
and "LAWYERS" who will plea-bargain for the guilty,
(especially when never even having fought in a war)
is a crown of thorns on the head of every soldier
who dies on the battlefield to keep America free.

Let the military fight the war as they were trained.
Ask these men (who our government sent into the dangers of war)
what they need. Then, give it to them thankfully and gratefully.

Collateral damage is reality, and it is a sore thing that
must be endured in the fight for right.

Former Marksmanship Training Instructor, U.S.M.C

[1bdby]

Unfortunately, during WW2,many innocent German and Japanese people were killed to achieve peace.
Over 3000 people were killed on 911 by Osama bin Laden and his gang of thugs. It was an unprovoked attack upon our nation. If the Taliban would have handed over Bin Laden and his brutal gang of killers right after 911, we wouldn't be in Afghanistain.
Like it or not, we are at war with a bunch of heathens, that has no respect for our freedoms.

Yes, there are going to be innocent lives lost, but as WW2 taught us, unfortunately, there will be innocent lives lost to achieve a just peace.

[gold_standard]

After America gets done killing thousands of innocent people in revenge for the 9/11 deaths, you can rest assured that the next catastrophic terrorist attack will not seem unprovoked to the rest of the world. Every killing of an innocent person builds hatred against America and motivates enemies to find a way to retaliate.

By the way, this article is about killing innocent people in Pakistan--and Pakistan already has nuclear weapons. We are turning the citizens of a nuclear power against us. We are undermining the government of a NUCLEAR POWER.

If a radical regime takes over Pakistan, they already have nuclear weapons that could be smuggled in on a yacht and detonated in the harbor of New York, Los Angles, Seattle, San Francisco, Houston, Miami, Boston, or more likely Washington D.C.

Your attitude that America can kill all the innocent people we please with impunity is fantastically insane, but admittedly the whole government and most of the population agrees with you. I am sure that when terrorists nuke an American city, Americans will become fanatically enraged. But the rest of the world will shake their heads in dismay and wonder why we didn't see it coming.

[nihilist66]

Gold Standard is using a false argument. The premise of Gold Standard's argument is "if the United States did nothing, everyone would leave the United States alone" However, prior to 9/11 there was the cole, the khobar towers and the bombing of the barracks in Beirut. None of those attacks was predicated by an offensive action of the United States.
"just be nice" was what the Jews attempted in Germany. Didn't work there, and it won't work with the islamic hate mongers, either.

[mysteriousjz]

This article is awesome!!! Perhaps a prelude to start a case against the US war and/or peace crimes in international criminal court.

[bendewald]

There is no longer a debate because Bush is out of office and Obama is in office, and the media has no intention of making it difficult for Obama.

[gold_standard]

"Hina Shamshi can stick it up her ear...when you come crawling in the US and murder 3000 Americans, there not a soul in the middle east that's not going to be a target...

LIVE WITH IT!"

You are promoting the murder of innocent people. You may not pull the trigger and physically do the deed, but by agreeing with killing innocent people, you are a murderer.

[tincup356]

Nothing but murder,,,,,,Just like they killed 3000 people on 911 ,,,,so they could make the wheels of war spin,,,,and get rich doing it. Our government is the MOST evil organization on the face of this Earth,,,,,,they try to sell the old national security song and dance,,,,,,,,,All lies to rob the people.