When the Obama administration took office in 2009, it was confronted with an extraordinary problem: what to do about the crimes of the previous administration, in particular its illegal global campaign of kidnapping, torture, and indefinite detention without trial of mostly innocent terrorism suspects. On taking office, President Obama announced that he would close the U.S. concentration camp at Guantanamo Bay within a year and he formally recommitted the U.S. military to legal prohibitions against torture and abuse of prisoners. But he rejected any effort to investigate his predecessor’s crimes, claiming that he wanted to “look forward.”
Obama, predictably, went back on his promise to close Guantanamo where indefinite detention, unfair trials, beatings, and abuse continue unchecked. Amnesty International lamented in November 2010 that the United States remains “an accountability-free zone” for war crimes. The Obama administration has not just provided “continuity” with Bush and Cheney’s illegal policies, it has vastly expanded the illegal worldwide campaign of “targeted killings” or “manhunts” that were first approved by Donald Rumsfeld in 2003.
American exceptionalism” was conceived as a vision of America for the rest of the world to look up to. Instead, it has come to describe the systematic American violation of otherwise binding international laws. Today the U.S. rejects the international rule of law on basic issues. When U.S. officials say, “All options are on the table,” it is well understood that they mean something quite different from, “All legal options are on the table.”
Escaping international accountability has been critical to freeing U.S. military doctrine from otherwise binding legal constraints. Article 94 of the UN Charter states that, “by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party.” In 1984, the ICJ ordered the U.S. “to cease and to refrain” from its “unlawful use of force” against Nicaragua and to pay war reparations. The U.S. refused, declaring that it would no longer accept the binding jurisdiction of the court. Nicaragua asked the Security Council to enforce the judgment, but this was met with a U.S. veto. The U.S. likewise rejects the jurisdiction of the new International Criminal Court (ICC).
The doctrinal rejection of legal constraints set the stage for the systematic violations of the UN Charter and the Geneva Conventions that are essential to America’s post-2001 war policy. With no fear that they will be forced to answer to impartial international courts, U.S. government legal advisers craft increasingly “bold” (meaning legally indefensible) rulings to provide cover for serious crimes, from torture to aggression to murder.
By contrast, in the UK, which is a party to both the ICJ and the ICC, the government’s legal advisers warned repeatedly that invading Iraq would be a “crime of aggression” for which British officials could face prosecution. The Iraq Inquiry in London has spent two years wrestling with the fact that the government ignored these warnings from its own legal advisers. Its final report may yet hold Blair and his cronies accountable for the cataclysm they unleashed on the people of Iraq, opening the door to criminal prosecutions and civil claims in British and international courts.
A Policy of Cold-Blooded Murder
As the Obama administration took office in 2009, an Eminent Jurists Panel appointed by the International Commission of Jurists (ICJ) and chaired by Mary Robinson, the former President of Ireland, published a report on America’s so-called “war on terror.” It concluded that U.S. violations of international law were neither an appropriate nor an effective response to terrorism, and that American leaders had confused the public by framing their counter-terrorism campaign in a “war paradigm.” The panel insisted that established principles of international law “were intended to withstand crises, and they provide a robust and effective framework from which to tackle terrorism.”
Barack Obama has halted the macabre parade of hooded, shackled suspects in orange jumpsuits stumbling off American planes into the tropical sunshine at Guantanamo, but he has not done so by restoring the rule of law. Instead, to a great extent, he has replaced Bush’s policy with a global campaign to simply kill a wide range of people in cold blood: terrorism suspects, resistance fighters, and anyone else added to secret lists for secret reasons.
From a uniquely American “exceptionalist” point of view, killing suspects instead of capturing them is a convenient way to avoid the embarrassment of sweeping up hundreds of mostly innocent people in an indiscriminate global dragnet and then not knowing what to do with them. The dead tell no tales. Public outrage is contained within the faraway countries where the killings take place and does not cause domestic political problems.
Without real accountability under established law, previously binding legal standards have been quickly dispensed with. U.S. officials have been formally prohibited from conducting assassinations since 1976 under President Ford’s executive order 11905. U.S. legal advisers have subverted this prohibition by ruling that “targeted killings” are not assassinations, but acts of self-defense. This simply ignores established rules of international law, in this case the Caroline principle, formulated by U.S. Secretary of State Daniel Webster in 1841 and now universally accepted, which limits the right of cross-border self-defense to a proportionate response to an imminent threat.
The U.S. forces committing these cold-blooded murders systematically count most of the innocent civilians they kill as “false positives.” When U.S. forces in Afghanistan killed Zabet Amanullah in a case of mistaken identity, they also killed nine campaign staff who worked for his nephew, a candidate for the Afghan parliament, based only on “guilt by proximity.” U.S. Special Operations officers explained to former BBC reporter Kate Clark that they operate under a general rule that proximity to a “target” is all the evidence they need to treat someone else as a target too. This helps to explain why U.S. body counts always claim more “insurgents” killed than civilians, despite illegal rules of engagement that routinely lead to excessive and indiscriminate killing.
U.S. “targeted killings” are conducted under the authority of both the CIA and U.S. Joint Special Operations Command (JSOC). The methods of killing generally fall into three categories: air-strikes by planes or helicopters; air-strikes by unmanned drones; and assassinations by JSOC forces on the ground.
The genesis of JSOC’s assassination operations was an open-ended “execute order” written by Donald Rumsfeld in September 2003 as widespread resistance to the illegal U.S. invasion took hold in Iraq. In addition to authorizing assassinations in Iraq, Afghanistan, and Somalia under military command, Rumsfeld’s order also authorized them in Algeria, Iran, Malaysia, Mali, Nigeria, Pakistan, the Philippines, Syria, and Yemen—subject to presidential approval. Whatever role the United States is or isn’t playing in the murders of Iranian scientists, Defense Secretary Panetta’s sweeping statement—“That’s not what the United States does”—was a disingenuous lie.
The Obama administration has expanded U.S. special operations deployments from 60 countries to about 80 since it took office, but how many of these are JSOC operations that include “targeted killings” is a secret. Special Operations Command has 58,000 personnel under its command and up to 25,000 of them operate under JSOC on a flexible basis. As of June 2010, JSOC had 9,000 troops in Iraq and Afghanistan and 4,000 more deployed in other countries.
At least three units are permanently assigned to JSOC: the Army’s Delta Force, the Navy’s DEVGRU (formerly SEAL Team 6), and the Air Force’s 24th Special Tactics Squadron. Other units that routinely operate under JSOC include the 75th Ranger Regiment and the 160th Special Operations Aviation Regiment (SOAR), known as the “Nightstalkers.” The 160th SOAR operates attack and transport helicopters to support Special Forces operations. A “Special Police Transition Team” from the 160th, SOAR was also assigned to the Iraqi Interior Ministry’s Wolf Brigade as it detained, tortured, and murdered thousands of civilians in Baghdad in 2005 and 2006.
JSOC Kills The Wrong People Most Of The Time
Seymour Hersh reported in the New Yorker in December 2003 that JSOC forces were being trained by Israeli assassins, or Mista’aravim, in Israel and North Carolina to conduct assassination operations in Iraq. “It is bonkers, insane,” a U.S. intelligence official told the Guardian, “Here we are—we’re already being compared to Sharon in the Arab world and we’ve just confirmed it by bringing in the Israelis and setting up assassination teams.” Other officials explained that the targets of the campaign would not be limited to actual resistance fighters, but would include much of the Iraqi middle class, who they believed were supporting and funding the Iraqi Resistance. “The Sunni population is paying no price for the support it is giving to the terrorists,” a U.S. officer told Newsweek. “From their point of view, it is cost-free. We have to change that equation.”
The American death squads in Iraq were widely credited with a critical role in the so-called “surge” or escalation of the war in 2007. A retired U.S. officer told PBS’s “Frontline” that they had become “so good at using electronic means of identifying, tracking, and finding” targets that they had created an “industrial strength counterterrorism killing machine.” The “killing” part is true, but JSOC’s “social network analysis” is a crude way to compile target lists based on numbers retrieved from captured cell-phones, with no effort to corroborate the data with real-world “human intelligence” as legitimate intelligence operations would require.
Two senior commanders made the extraordinary admission to Dana Priest of the Washington Post that JSOC raids have a less than 50 percent record of targeting the right person or house. The systematic failure to positively confirm the identities of the targets—who are mostly civilians not engaged in military operations at the time they are killed—makes the assassination campaign a very serious war crime, arguably even a crime against humanity, as it expands to kill more and more people in a growing number of countries.
Under President Obama, the number of night raids in Afghanistan expanded from 20 raids per month in May 2009 to over 1,000 raids per month by April 2011, using “social network analysis” of cell-phones captured in previous raids or confiscated in prisons to create ever-expanding target lists. Gareth Porter of Inter Press Service reviewed the records of 4,100 people captured in night raids in Afghanistan during a 6-month period in 2010 and 2011. He found that 86 percent were released immediately or on the first review of the evidence against them. U.S. officials only had real evidence against 14 percent of their prisoners. The same methods are used to generate target lists for “kill” as for “capture” operations. So were 86 percent of the people killed in night raids innocent as well?
The UN reported that only 80 civilians were killed in Afghanistan in “search and seizure” operations in 2010, along with about 2,000 so-called “insurgents.” But the 80 civilian deaths were the result of only 13 incidents the UN had fully investigated, while 60 more incidents were still awaiting investigation. Nader Nadery of the Afghanistan Independent Human Rights Commission estimated that the UN would eventually revise its count to about 420 civilian deaths if and when it resolved this backlog of cases.
But this would still be a low estimate of civilian deaths in night raids. The UN has no access to the resistance-held areas where most night raids occur, so it receives no reports at all from those areas. Even a complete analysis of all the incidents reported to the UN would therefore yield only a fraction of the actual number of civilians killed. With at least 50 percent of raids targeting the wrong person or house, it is safe to say that more than half the 2,000 Afghans killed in night raids in 2010 were probably innocent civilians, and that the escalation of the campaign in 2011 probably led to an even higher proportion of “false positives.”
When assassinations are conducted by air strikes, they are even more likely to kill innocent people. In the case of Zabet Amanullah, he was targeted based entirely on “social network analysis” of cell-phone records, which misidentified him as Muhammad Amin, the Taliban shadow governor of Takhar province. U.S. officials thought that Amin was using “Amanullah” as an alias, but they didn’t even bother to find out whether a real person called Zabet Amanullah existed. This would have been quite easy, as Amanullah was a commander who quit the Taliban in 2001 and became a well-known human rights activist in Kabul. But “social network analysis” does not include asking people questions in the real world. If your cell-phone records match certain criteria, you are condemned to death, along with anyone else who is “guilty by proximity.”
William Arkin was given rare access to the U.S. Combined Air and Space Operations Center in Qatar and was allowed to watch an air strike that targeted an alleged resistance leader named Baz Mohammed Faizan in Afghanistan. A team in Qatar went to some lengths to order up a strike by two A-10 Warthog warplanes with 500 pound bombs from Bagram Airbase. Officials explained that the 1,000 pound bomb on a nearby plane was too big and would kill too many civilians, while the 150 pound Hellfire missiles on the Predator drone that had been tracking Faizan could easily miss—somuch for “precision” drone strikes.
The U.S. Air Force’s A-10s were designed and built in the 1970s and early 1980s for use against Soviet tanks. Their main weapon is a cannon made by General Electric that fires 30 mm armor-piercing shells at a rate of 65 per second. Watching the A-10s in action on TV monitors in Qatar, Arkin saw one of them drop its bomb and then come around for a second pass and strafe the whole area with a torrent of fire from its tank-busting cannon.
Arkin expressed shock that this “precision” strike had suddenly turned into an indiscriminate massacre. A U.S. official quickly told him that the strafing “was not unauthorized” and that, once an attack is under way, JSOC air controllers on the ground take full control of the operation. Arkin had discovered a dirty little secret of JSOC operations. All the precautions taken by analysts, JAG officers, and senior officials to use proportionate force in planning operations no longer apply once the operations are under way.
Despite this excessive and indiscriminate use of force, an officer later showed Arkin a memo from the CIA which concluded that Faizan had walked away alive at the end of the attack. Apparently he did not tell Arkin how many other people it had killed and wounded or how many of them were innocent civilians.
License To Kill Without Accountability
But the most indiscriminate weapon used in U.S. assassinations is the drone. In 10 years, Predator and Reaper drone operations have mushroomed from an experimental program at Nellis Air Force Base in Las Vegas and a few take-off sites in Iraq and Afghanistan to 60 locations around the United States and the world, where hundreds of missile- and bomb-laden drones are operated by CIA, U.S. Air Force, and Air National Guard personnel and “contractors.”
The Obama administration has expanded the CIA’s drone campaign in Pakistan from 42 strikes under Bush to 241 strikes since 2009. They have killed between 1,700 and 2,700 people, of whom at least 90 percent were civilians, according to Pakistani journalists and human rights groups. U.S. claims of fewer civilian deaths are undoubtedly tainted by “false positives.”
On June 2, 2010, the UN Special Rapporteur for Extrajudicial Executions, Philip Alston, issued this diplomatic but damning statement: “Targeted killings pose a rapidly growing challenge to the international rule of law, as they are increasingly used in circumstances which violate the relevant rules of international law… The most prolific user of targeted killings today is the United States, which primarily uses drones for attacks… this strongly asserted but ill-defined license to kill without accountability is not an entitlement which the United States or other states can have without doing grave damage to the rules designed to protect the right to life and prevent extrajudicial executions…
“…the United States has put forward a novel theory that there is a ‘law of 9/11’ that enables it to legally use force in the territory of other states as part of its inherent right to self-defense on the basis that it is in an armed conflict with al-Qaeda, the Taliban and ‘associated forces,’ although the latter group is fluid and undefined. This expansive and open-ended interpretation of the right to self-defense goes a long way towards destroying the prohibition on the use of armed force contained in the UN Charter.”
But drones fulfill important political objectives for U.S. policy-makers. U.S. war policy since 1945 has been driven by a never-ending quest to inflict death and destruction in other countries without a political backlash from large numbers of American casualties. Foreign casualties, even of innocent civilians, are politically less damaging than even small numbers of U.S. casualties.
Illegal U.S. rules of engagement reflect these priorities, authorizing excessive and indiscriminate use of force in the interest of “force protection.” As a result, the 6,400 U.S. deaths in Iraq and Afghanistan are hardly one-tenth the number of Americans lost in Vietnam, even though more than a million Iraqis and Afghans have been killed. In the bloody calculus of American politics, the reduced American death toll has minimized the political cost of war and made it a safer option for policy-makers. The use of unmanned drones provides an even more politically attractive way to wage war, unleashing powerful weapons against people on the ground with no immediate danger of American casualties at all. Drone manufacturers currently have orders for another 730 medium and large armed drones.
A Revised U.S. War Policy
The U.S. “targeted killing” campaign and NATO’s campaign in Libya are two tracks of a revised U.S. war policy following its failed occupations of Afghanistan and Iraq. In Libya, NATO conducted 9,700 air strikes in 8 months, the most concentrated bombing campaign anywhere since Iraq in 2003. The U.S. role was “disguised, quiet, and media-free,” even though it supplied two-thirds of the NATO personnel, half the planes, nearly all the drones and cruise-missiles, and officially spent more on the war than the UK did.
Public credit was reserved for the Libyan rebels. The role of British, French, Jordanian, and Qatari Special Forces on the ground was shrouded in secrecy. When Qatari Special Forces blasted their way into Gaddafi’s compound in Tripoli, the world saw only jubilant Libyans. Under cover of a UN mandate to protect civilians, NATO besieged, starved, bombed and shelled Sirte and Bani Walid for over a month, leaving them and other towns in ruins. NATO’s war killed far more Libyans in eight months than Colonel Gaddafi had in 42 years. The new government estimates that 25,000 people were killed in the war. Other estimates run as high as 50,000. This is a far higher death toll than in all the other Arab Spring revolutions combined, a good reason for people everywhere to choose non-violent revolution over U.S. or NATO intervention if they have any choice in the matter. The Obama administration conducted the entire war without authorization from Congress in open violation of U.S. law.
The Obama administration bases its aggressive and global use of force on the Authorization for the Use of Military Force (AUMF) passed by Congress in 2001. The AUMF gave the president the authority to use “all necessary and appropriate force against those nations, organizations, or persons” who he determined to have “planned, authorized, committed or aided” the terrorist crimes of September 11, 2001 in the U.S.
As John Bellinger, the Bush administration’s State Department Legal Adviser, explained to the Washington Post in June 2010, most of the people the Obama administration is targeting had nothing to do with the 2001 terrorist crimes, so Obama has no authority under U.S. law for most of these operations.
Because President Obama did not act firmly to stop his government’s violations of U.S. and international law and to hold U.S. officials accountable, America’s descent into systematic international crime has continued on his watch, leading to new war crimes for which he and his subordinates are criminally accountable. Far from a “shining city on a hill,” American exceptionalism has led us to a graveyard in a dark valley. Americans must accept the same international laws, treaties, and standards of accountability as our “unexceptional” neighbors if we are ever to break the death spiral of American neo-imperialism and begin the conversion to a prosperous, sustainable, and peaceful society.
Nicolas J. S. Davies is the author of Blood On Our Hands: the American Invasion and Destruction of Iraq (Nimble Books).