A partial solution is not expensive, created from exotic materials, or overly glamorous, but rather, an approach that requires only the slightest redirection of priorities.
The trajectory of developments holds value as a guide to the challenges of the next decade and the education and training needed to meet them.
About the Author(s)
The CIA should focus on gathering intelligence to inform policy makers and to attack the underlying causes and enablers of terrorist group formation and action.
About the Author(s)
The preliminary narrative surrounding the Justice Department’s white paper on targeted killing obtained by NBC News is marked by breathless consternation over the leeway it provides to administration officials.
The American Civil Liberties Union (ACLU) has described the memo as “a chilling document” and decried “the irresponsible extravagance” of the government’s claim to lawfully engage in the extrajudicial killing of American citizens. Legal scholars have panned the analysis as giving the White House cover to act as “judge, jury, and executioner.”
The document, however, is less chilling than confused. It is the work not of sanguinary enablers, but of constitutional lawyers who appear to lack familiarity with the laws of war.
The white paper is a bundle of contradictions. It asserts that the United States is in an armed conflict with al Qaeda and its associates, and that this armed conflict follows the enemy wherever it sets up a base of operations. In so doing, the memo explicitly rejects the argument advanced by some critics that the wartime norms enabling premeditated lethality only apply to “hot” conflict zones like Afghanistan.
If targeted killings are conducted in the context of armed conflict, then their pursuance is regulated by the laws of war. This body of law sanctions the acts of destruction inherent to war, but seeks to mitigate their worst excesses and consequences. As such, force must be directed at military objectives, exclude civilian targets, avoid excessive collateral damage, and prevent unnecessary suffering.
Under the laws of war, legitimate targets can be subjected to deadly force at any time and place. George Washington did not have to awaken the Hessians from their Christmas slumber and give them fair warning before his ambush at Trenton.
Moreover, while civilians must be spared from direct attack, they can render themselves lawful objects of lethal operations “for such time as they take a direct part in hostilities.” Through this mechanism, a nominal civilian may negate his protected status by virtue of his own hostile actions. The nationality of such an individual is irrelevant. An American citizen setting booby traps for the Viet Cong would surely have found himself in the crosshairs of an American sniper.
The laws of war thus provide the legal architecture for wartime conduct, but the white paper manufactures uncertainty by introducing concepts foreign to this area of jurisprudence.
For example, the memo requires that the proposed target pose “an imminent threat of violent attack against the United States,” even though imminence plays no role in the legal framework governing the conduct of hostilities. On the contrary, imminence is a concept drawn from the separate body of law regulating when a state may resort to force in the first place, particularly with respect to invoking the right of national self-defense. Since the memo presumes a pre-existing state of armed conflict with al Qaeda and its associated groups, the discussion of imminence is misplaced.
In addition, the memo mandates that capture be deemed infeasible before resorting to fatal attack. This requirement does not comport with wartime standards, wherein enemies wield lethal force against one another as a matter of course. Rather, it is reminiscent of the rules for law enforcement, which direct police officers to arrest suspects and only resort to deadly weaponry as a last resort.
The problem with the white paper’s reasoning is that it invites the very outcry that the release of the document has in fact provoked. By trying to fit important doctrines such as imminence and feasibility of capture into inappropriate contexts, the memo ends up contorting them beyond recognition.
For instance, the memo’s drafters endorse “a broader concept of imminence” which does not require “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” The ACLU cannot be blamed for countering that such verbal gymnastics threaten to “redefine the word imminence in a way that deprives the word of its ordinary meaning.” It is, as an ACLU attorney said, “the language of limits—but without any real restrictions.”
Most significantly, such confused logic and conflicting rhetoric run the risk of merely whetting the appetite of the nation’s critics, who deny the existence of a transnational armed conflict with al Qaeda-linked groups and contest the legality of most, if not all, targeted killings on that basis. U.S. inconsistency regarding the legal justifications for its counterterrorism programs undermines its ability to oppose such claims.
If U.S. officials have decided that drone strikes are good policy, and if their lawyers have determined they are being carried out in the context of an armed conflict, then the operations in question are governed by the laws of war. Sometimes the simplest answer is also the best one.
The relatively recent New York Times article on President Obama’s “Kill List” (and other similar articles here and here along with the strike on Al-Qaeda’s former second-in-command) highlights not just a moral conundrum for the commander-in-chief but a strategy that if enacted by itself may cause more harm than good. What’s worse, the United States has learned that this approach is self-defeating at the operational level in Vietnam, Iraq, and Afghanistan. A “kill list” is little different than a “body count” strategy—kill enough of them, and the threat goes away. However, as noted in the article, the kill list which includes individuals from a number of states (including the United States) never gets shorter, the names and faces are simply replaced.
More recently, in Iraq and Afghanistan, our military forces recognized that such kinetic or direct action meant little without more robust political, economic, and local security development efforts. For specific purposes, drone strikes are tactically useful. They can remove key individuals from the tactical, operational, and planning roles they filled which weakens the overall capabilities of the adversary. But, like a “body count” strategy, success cannot be measured by the number of individuals killed—direct strikes must be part of a comprehensive approach to be truly effective in counterinsurgency operations. As recent gains have demonstrated, achieving the overall goals of defeating an insurgency requires that kinetic operations support the more mundane but ultimately more important political and economic operations along with the development of local security capabilities. That is the best way to achieve stability and security. Make no mistake, kinetic operations are a key part of an overall successful operation. But, they are just that -- a part of an overall successful operation.
Using drone strikes in countries in which we do not have the same level of stability and support activities as we have in Iraq and Afghanistan is where the dilemma lies. The assumption, though, is that the benefit of killing a key individual outweighs the animosity generated within the local population. We cannot forget that there is always some degree of animosity generated from these operations. Guilty as well as innocent people are killed. Sovereignty is violated. Honor is trampled. In both Iraq and Afghanistan, difficult decisions have been made on the benefits of kinetic operations versus the negative repercussions generated. Winning the battle cannot—and should not—be traded for winning the war.
The working “guess” in conducting drone strikes in Yemen, Pakistan, and other countries is that the benefits to national security policy outweigh the negative feelings and animosity generated by such strikes. But is this correct? Can kinetic operations without political, economic, and local security development operations be more effective on a strategic level than on the operational and tactical levels? And really how dangerous is this indignation and ire that is generated towards the United States? Drawing the causal link between a drone strike in Pakistan and an attempted bombing in the United States is, for all intents and purposes, impossible. A man whose cousin was killed in an airstrike five years ago may not become the next terrorist mastermind, but he may be much less likely to tell foreign or local security forces that such a person is living in the same area. To paraphrase Mao Zedong—who compared insurgents to fish and the population that supported them to water—even if our actions might not be generating more fish, they are still generating more water.
The number of Al Qaeda members killed by such activities, though, is hard to ignore. According to Bill Roggio in his blog Long War Journal, “2,300 leaders and operatives from Taliban, Al Qaeda, and allied extremist groups [have been] killed and 138 civilians [have been] killed” in Pakistan in 300 drone strikes since 2006. Any civilian casualty is unacceptable, but removing a couple of thousand individuals who could potentially do harm to Americans and further destabilize the Afghan government seems to be a step forward in achieving our strategic goals. If Mr. Roggio’s numbers are accurate, this is strong evidence in support of drone strikes.
But even given these numbers, I am not sure how kinetic operations without the other non-kinetic activities would be more effective at the strategic level. We may believe that a comparatively small number of drone strikes in Yemen versus a large number of drone strikes in Afghanistan generate relatively less blowback, but in today’s internet and strategic communication reality this is not necessarily the case. One drone strike magnified through the internet a thousand-fold may be just as detrimental to our overall goals as a hundred drone strikes in an analog world. Detractors may say that such strategic communication really does not matter, even though we give lip service to its importance; removing terrorists from the battlefield matters above all else. Such may be true. Even if we wanted to support kinetic operations with political and economic operations, the scale would probably make such actions impossible given the lives, money, and time spent just in Iraq and Afghanistan. We must make a frank assessment of the degree to which these strikes support our overall strategic goals when they are conducted without the full implementation of other necessary activities.
So where does that leave us? Stuck between bad options, it seems. Politics demands that we “do something” to fight terrorist organizations, but that “something” may harm our overall goals. Drone strikes may be part of an answer, but they are not the answer.
Washington is abuzz over the presumed political pandering behind the White House¹s fostering the image of the Commander in Chief as the final arbiter of which among our terrorist enemies abroad is or is not a legitimate target for U.S. drone strikes. While regrettably self-serving if true, the outrage misses the more important point: the President's limited time is better spent on strategy than on tactics.
Simply stated, civilian control of the U.S. military is a foundational concept of our democracy, but it doesn't mean the President needs to pull the trigger himself. It is inescapable that briefs getting to the President are short, often consensus-driven, and lack some details because they have been filtered and reviewed by dozens of people. That is fine for delivering information to support strategic decisions, but insufficient for tactical go/no-go decisions that require both a deeper background in military and intelligence affairs and appreciation of subtle differences within snippets of intelligence reports than any President could or should have. We must protect the kinds of tactical and operationally sensitive information otherwise not written down because it could compromise sources and expose tradecraft and relationships with foreign intelligence services. Also, the President need not personally weigh the personality of the field officer filing the report or institutional rivalries that shade conclusions this way or that. Unless the target is Bin Laden himself, isn¹t it better that the President be setting policy, delegating to trusted professionals, and spending his time working to resolve other major issues?
Three related concerns also arise:
First, even if he had all the details he doesn’t have decades of on-the-ground experience in intelligence to rely upon in making tactical-level life and death decisions. We live in a harsh and changing world, one where a decision today to use a drone kills a man without trial or appeal. In a world where a couple dozen people can kill three thousand and cost billions in damage and decades of war, such summary executions may have become necessary. As a realist I can accept that because the other option is to let these terrorists kill untold hundreds or thousands of innocent lives. But it is not appropriate for the President to be seen as picking specific names and setting the conditions under which specific strikes occur; he is neither qualified nor sufficiently protected to be doing such tactical tasks.
Second, we cannot afford a President overly-wedded to any specific decision nor forget the need to protect the Oval Office from repercussions following inevitable mistakes, collateral damages, killing a source by accident, or potentially politically-motivated International Criminal Court (ICC) actions.
Third, any executive must build out his team, empower subordinates, and rely on others with more experience, perspective, and time to spend making the tactical decisions and doing the legwork. President
Lincoln famously got involved in the Civil War by hiring and firing generals but he didn't point the cannons himself or set the time of a given battle; he set forth orders and held subordinates accountable because the President’s role is in to craft strategy with the execution done via duly appointed subordinates. Taking away these decisions isolates a leader from developing trusted aides who can act in his stead a critical force multiplier needed for any complex operation, and doubly so for a White House.
For these reasons and more the President should set policy and let someone else make the call. This could be the head of the Special Operations Command, Director of National Intelligence, or a special panel convened for making such decisions.
Meanwhile, the President should focus on serious strategic issues like the impacts of the current laws requiring ‘sequestration’ cuts of another $500 billion from the national security budget, strengthening ties with NATO and other allies, and addressing frictions on issues like Syria, re-supply lines thru Pakistan to Afghanistan, and the rise of China as a true naval power.
In a rough and tumble world sometimes realism dictates a certain amount of plausible deniability. The President would do well to remember that and leave the sorting of specific targets to those under his command and acting in due regard to his specific guidance. The intelligence and military professionals at senior levels have spent decades developing their instincts and either they are up to the job or they should be replaced with people who are. Either way, the President needs to operate strategically and set policy by focusing on the big picture.
As the tide of automated warfare is rising, optimists are already attempting to ride the wave. I do so in Proceedings, suggesting possible paths of development for autonomous platforms and with Ben Kohlman at the Disruptive Thinkers blog imagine future scenarios in which automated platforms might be used. Admittedly, we often ignore the many ways our concepts can wipe out: particularly signals hijacking and spoofing of navigational systems. As illustrated by eavesdropping on Predator communications and the recent forced crash of a drone in Texas , determined enemies can steal information or cause mayhem if they break the code on combat robot (ComBot) operations. Ideas for securing these advanced automated armadas can be found in some of the oldest methods in the book.
Paleo-Wireless: Communicating in the Swarm
In 2002, LtGen Paul Van Riper became famous for sinking the American fleet in a day during the Millennium Challenge exercise; he did so by veiling his intentions in a variety of wireless communications. We assume wireless to mean the transfer of data through the air via radio signals, but lights, hand signals, motorcycle couriers, and the like are all equally wireless. These paleo-wireless technologies are just what ComBots need for signal security.
ComBot vulnerabilities to wireless hacks are of particular concern for planners. Data connections to operators or potential connections between ComBots serve as a way for enemies to detect, destroy, or even hijack our assets. While autonomy is the first step in solving the vulnerability of operator connections, ComBots in the future will work as communicating teams. Fewer opportunities will be provided for subversion by cutting the long link back to the operator while maintaining the versatility of a small internally-communicating team. However, data communication between ComBots would still be vulnerable. Therefore, ComBots must learn from LtGen Van Riper and move to the wireless communications of the past. Just as ships at sea communicate by flags and lights when running silent or soldiers might whisper or motion to one another before breaching a doorway, ComBots can communicate via light, movement, or sound.
Unlike a tired Junior Officer of the Deck with a NATO code-book propped open, computers can almost instantly process simple data. If given the capability, a series of blinking lights, sounds, or even informative light data-transmissions could allow ComBots of the future to coordinate their actions in the battlefield without significantly revealing their position. ComBots would be able to detect and recognize the originator of signals, duly ignoring signals not coming from the ComBot group. With the speed and variation of their communications, compressed as allowed by their processing power, ComBots can move through the streets and skies with little more disruption than a cricket, lightening bug, or light breeze. High- and low-pitch sounds and infrared light would allow for communications undetectable to the average soldier.
LtGen Van Riper melded a deadly combo of new weaponry with old communications to build a force capable of, with the greatest surprise, wiping out a force armed with the greatest technology in every category. Utility, not technology, is what gives us the edge in the battlefield. Sometimes it is a combination of the old and new that allows for the potency. Perhaps, one day, ComBots will be set loose into the battlefield where they will operate more as a pack driven by sight and sound than a military formation managed over a data link.
GPS: How About a Map?
The Texas incident has broken open the doors on a previously low-key vulnerability for ComBot systems, navigation. While speculation is rife as to how the CIA lost a drone in Iran, it is quite clear that the researchers in Texas were able to spoof a ComBot into destroying itself. Spoofing of externally-based navigational systems is a potential way to turn aerial ComBots in particular into weapons against us. It is often forgotten that systems that are “autonomous” still rely on outside guidance references that can be manipulated. While civilian GPS is less secure than military-grade GPS, the potential for GPS spoofing to lay-low a combat force is a chilling one. However, the solution can be found by augmenting legacy techniques with modern processing.
Terrain Contour Matching (TERCOM) and Digital Scene Mapping Correlation (DSMAC) are non-GPS methods of navigation that specifically use internal recognition of local terrain and urban landmarks to maneuver Tomahawk missiles. This is another way of, “looking around and reading a map.” Processing power advances since the system was first introduced during the Cold War mean greater amounts of recognition data can be processed in shorter amounts of time by smaller platforms. ComBots deployed to specific areas can upload local data to allow localization based on terrain from high altitude or Google-maps-style scene matching from rooftops or even street-by-street. With adaptive software, ComBots could even “guess” their location if the battlefield changes due to combat destruction, noting changes in their environment as damage is done. While GPS can be spoofed, unless the enemy has been watching too much Blazing Saddles, DSMAC and TERCOM will be nigh impregnable navigational systems.
This defense for ComBot operations can also act as a navigational redoubt for a fighting force. The downing of GPS satellites or the spoofing of signals effects everyone using electronic navigation systems. Aerial ComBots outfitted with TERCOM and DSMAC could act as a secondary GPS system in an area with a GPS outage. If signals are jammed or satellites taken out, warfighters or other navigationally lesser-developed ComBots could triangulate their positions based on the system of ComBots with locations determined by TERCOM and DSMAC. By adding these recognition systems to autonomous drones, commanders will defend ComBots from hijackers and combatants from the choking fog of war.
Riding the Wave:
The key to the safe and effective use of ComBots is to avoid the extremes of optimists and luddites. Optimists will look far into the realm of capability before necessarily researching vulnerabilities, abandoning the old for every shiny new development. Luddites will make certification and security processes long and complicated, cowering from the strange light new technology brings; ComBots would run on Windows 95 and take 30 minutes to log on to themselves. It is best to advance fearlessly, but take our hard-learned lessons with us. Non-digital communications, aka speech and signals, and localized navigational systems, aka carrying maps, offer ComBot developers a shield against interlocutors. Our new dogs will be best defended by some of the oldest tricks.
One of the more pernicious accusations made by opponents of U.S. targeted killing operations is that CIA personnel involved in drone warfare are violating the law. This argument, endorsed by many in the legal academy and human rights community, is meant to delegitimize the CIA counterterrorism offensive by equating its operators with the transnational terrorists they are targeting.
However, such criminations are based on an overly rigid and inaccurate reading of the laws of war.
As a preliminary matter, the stated U.S. position is that the fight against al Qaeda constitutes an armed conflict sanctioned domestically by the post- 9/11 Authorization for the Use of Military Force, and internationally by the inherent right of self-defense acknowledged in the United Nations Charter.
The law of armed conflict, which governs the conduct of hostilities during wartime, does not prohibit the use of civilian personnel in combat. Rather, Additional Protocol I to the Geneva Conventions outlaws “perfidy,” or the deliberate manipulation of the rules of war to put law-abiding fighters at risk. Such conduct, which our enemies engage in constantly, includes “the feigning of civilian, non-combatant status” in order to mount ambushes.
Although Protocol I applies only under specified circumstances and the U.S. has not ratified it, we nonetheless acknowledge the prohibition on perfidy as binding customary law. Thus, it would be unlawful for the CIA to paint a drone with the insignia of a commercial airline carrier, and then use such camouflage to launch sneak attacks on civilian airports.
Since the use of CIA drone operators is not illegal per se, the next issue is the status of its workforce under the law of armed conflict. This discussion is largely academic, because it considers whether CIA pilots would merit status as prisoners of war (POWs) if captured. Of course, no one imagines that al Qaeda would apply a legal analysis to this question, which at least partly explains why the physical remove of drone technology is so valuable in a fight against lawless enemies.
As a general rule, soldiers in war are entitled to “belligerent immunity,” which means that because they are authorized to directly participate in hostilities, they cannot be held liable for the warlike acts they commit. As the famed Nuremberg prosecutor Telford Taylor wrote, “War consists largely of acts that would be criminal if performed in time of peace,” but “the state of war lays a blanket of immunity over its warriors.” As such, enemy soldiers captured on the battlefield are held as POWs rather than tried as murderers.
The third Geneva Convention lays out a four-part test that armed groups must meet in order to qualify for POW status. Although these criteria are technically applicable in limited scenarios, they have gained larger acceptance over time as the indicia of lawful belligerency in general. The threshold factors include: (1) command responsibility, (2) distinctive insignia, (3) exposed weaponry, and (4) compliance with the laws of war.
Critics of U.S. targeting operations often contend that because CIA drone pilots are not sitting at their consoles in flight suits bearing Air Force rank insignia, they are entitled to neither belligerent immunity nor POW status, and could be tried for murder under the domestic laws of any foreign authority that apprehended them. While there are no doubt certain countries that would relish just such an opportunity, this is not a legally defensible assertion.
First, the legal requirement for fighters to display a distinguishing marker emphatically does not mean that even military service members must be in uniform 24 hours a day. In fact, because soldiers are valid military targets at all times during war, it is anticipated that if attacked while sleeping, they will immediately fight back in their underwear rather than wait to don their battle dress. Moreover, many an epic sea battle has been fought by sailors in shirtsleeves.
Second, it is important not to lose sight of the underlying principle animating the formalized requirements. Here, the basic rule is “distinction,” which requires belligerents to distinguish themselves from nearby civilians so as not to bring them into the enemy’s line of fire. This standard, although routinely and purposefully violated by our adversaries’ use of human shields, has no bearing on the attire of a drone operator at Langley.
While there is certainly room for debate over the proper role of intelligence agents in lethal operations, this is a matter of policy, not law. Branding CIA operators as scofflaws simply for doing their jobs is neither productive nor correct.
Peter Matulich argues for a more comprehensive approach to COIN in Pakistan.
About the Author(s)
Adam Elkus explores the role of drones in battle and warfare and concludes that the moral concerns are nothing new to military history.