Pepperdine law professor Gregory McNeal has a guest post at Lawfare on the US military’s processes of targeting and target review, drawing on his outstanding new paper, up at SSRN, “The US Practice of Collateral Damage Estimation and Mitigation.” The paper is descriptive, qualitative political science, drawing on extensive reviews of available US government documents and interviews about collateral damage mitigation processes used by the US military in Afghanistan. I regard it as essential reading today in the law of armed conflict. As McNeal says in his guest post:
I was motivated to write about this topic because I sensed a major disconnect between the descriptions of the targeted killing process offered by commentators and what I knew to be the actual practice of the U.S. military in air to ground operations, in particular the rigorous steps followed to avoid civilian casualties through both the collateral damage methodology (CDM) and fairly protective Rules of Engagement (ROE). The paper is based on field interviews, documents released in litigation, training materials, official policy guidance released through FOIA requests, some WikiLeaked documents, press accounts and the standard fare of law review articles and other scholarly sources. The piece is empirical and descriptive; I take up the normative implications of my findings in a separate article entitled Collateral Damage and Accountability, which is not yet available in SSRN.
Much of the commentary about air launched targeted killing–especially the commentary that focuses on a “video game” style of warfare with unaccountable geographically remote pilots dropping bombs at their own discretion–simply does not describe the reality of current combat operations (I directly address the false claims about targeted killing in a forthcoming book chapter). To highlight one example of the reality I describe versus commentary we typically read, just consider the fact that in Afghanistan since at least June 2009, all air-to-ground operations are pre-planned operations unless troops are in an emergency situation requiring close air support (CAS), close combat attack (CCA) or the pilot is acting in self-defense. In both CAS and CCA in Afghanistan, the pilot may not deploy a weapon without ground commander direction, usually through a Joint Terminal Attack Controller (JTAC) (a JTAC is a person who accompanies ground forces and is specifically trained to direct accurate close air support to engage enemy targets while reducing collateral damage and civilian casualties). The pilot’s only discretion in current operations is to decide not to release a weapon, in other words the ground commander owns the battlespace not the drone pilot. Furthermore, Air Force leaders repeatedly emphasize to their pilots that they will not be disciplined for returning to base with all of their bombs on their plane. Air Force leadership will even support the decision of pilots not employ a weapon, even if that decision directly contravenes the orders of the ground commander. This reality is a far cry from the free fire zone of “video game” warriors described by many drone critics.
Because targeted killing operations by UAV are not CAS or CCA, they are pre-planned operations, and as such must be subjected to the military’s rigorous collateral damage methodology. That methodology is grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence, and is designed to adapt to time-critical events. The CDM is a planning tool that assists commanders in mitigating unintended or incidental damage or injury to civilians, property and the environment and aids them in assessing proportionality and in weighing risks to collateral concerns. In the context of targeted killing, the CDM takes into account every conventional weapon a UAV could carry.
One of McNeal’s crucial observations is that although many of us who discuss targeting from a legal standpoint immediately turn to focus on the legal baselines of necessity, distinction, and proportionality. However, if one looks at US military operations planning, there are many steps in seeking to estimate collateral damage and avoid it, long before reaching a legal analysis of proportionality under the laws of war:
[I]n the actual practice of modern operations there are a series of scientifically grounded mitigation steps that commanders undertake prior to engaging in any proportionality balancing.
The mitigation steps followed by the military are highly technical, however the best way to understand them is to recognize that the U.S. has an extensive database of weapons effects for nearly every conventional non-direct fire weapon in the U.S. military’s arsenal. That database takes into account the blast, fragmentation and debris patterns of weapons when they explode. This information, combined with knowledge about speed, direction of weapon employment, fusing techniques, and information about terrain and structures can be modeled in a way that allows for very precise estimates of weapons effects. After positively identifying a target, the weapons effect data is converted into a collateral hazard area, and trained specialists will determine whether or not there are any collateral concerns within that area. If so, mitigation techniques must be employed to reduce the likelihood of harm to collateral concerns.
For example, the military can predict that a 1,000 pound bomb dropped in a certain place within a structure will kill everyone within Room 1, and everyone in Room 2, and not harm anyone in Room 3. A mitigation technique might be to use a 500 pound bomb, or bury the bomb in the ground prior to detonation, or detonate the bomb in the corner of Room 1, at a point farthest from Room 2. Any of these mitigation techniques might ensure with a high level of certainty that the persons in Room 2 are unharmed. Of course, in light of this precision, the biggest challenge is an intelligence challenge.
Note this quite extraordinary conclusion about how high a level of approval is required for any anticipated civilian deaths in Afghanistan in 2010:
[I]n Afghanistan circa 2010 ... if even one civilian casualty was expected in a pre-planned strike, that strike would have to be authorized by the Secretary of Defense or higher (although some reports indicate that this authority has since been delegated to the CENTCOM commander).
This is remarkable. But it is also a testament to just how much intelligence and information can be utilized in Afghanistan operations today – after, however, a full ten years of war. I have some concerns that these standards be taken as the norm for future operations elsewhere, where the intelligence and information is not available in such a wealth of detail to allow these kinds of detailed estimates. NATO operations in Libya had nothing like this wealth of information, or precision in the actual strikes. (Indeed, it seems to me as a salutary exercise for the US military to carry out a thorough legal review of the actual targeting practices deemed lawful by NATO militaries, particularly France and Britain, as a baseline of what was regarded in actual tactical engagements as lawful state practice.) Future US military operations elsewhere will not start out with the informational and intelligence inputs that the US has in Afghanistan today.