Since the First World War and the birth of airpower, both military and civilian personnel have worked together to compile target lists for bombing. New and evolving technology has reduced the “blast radius” of the munitions dropped to such an extent that individuals can now be targeted with modified anti-tank missiles, such as the Predator’s aptly named “Hellfire”. What is truly “new” about targeted killings, to my mind, is not simply the fact that the military and intelligence community have “kill lists”, but that the entire process is increasingly automated in two senses: bureaucratically and technologically.
The centrality of bureaucracy in the U.S. program of targeted killings came to public light with the October 2012 “revelations” that President Obama is intimately involved in deciding who lives and who dies in a globalized “free fire zone”. After a year, much of the initial shock has subsided, even if the CIA and JSOC fleet of Predators continue to hunt individuals in Pakistan, Somalia, and Yemen. At the time of the Washington Post’s articles, we got a glimpse into some of the biopolitical “techniques” that bureaucrats utilize: a “disposition matrix” that catalogues dangerous individuals, together with a “playbook” that details the operational procedure for kill or capture missions.
And yet, there were many questions left unanswered: how exactly did the nominations process in the White House’s “Terror Tuesday” meetings function—and what were the bureaucratic procedures that were involved in placing an individual on a kill-list?
Gregory McNeal’s extensive essay, “Targeted Killing and Accountability”, fills in many of these blank spots. What follows is a summary of this long and complex article – the “first of its kind” to cover the bureaucracy of targeted killings in this level of detail. McNeal uses a collage of FOIA requests, newspaper articles, and interviews to reconstruct the process. Much of the literature on drone warfare and other works on targeted killing miss many of the finer-grain assessments and protocols that Washington officials make (simply because they are secret). What McNeal aims to do, then, is to show the complex bureaucratic procedures that are in place, and therefore help construct a more complete scholarly analysis. His more implicit aim, at least in my opinion, is to take the sting out of criticism of the program by revealing its methods of accountability. I remain sceptical, however, that “accountability” can ever be realized in such a nebulous, shadowy world. While a bureaucracy like the CIA may indeed contain a raft of “law-like”, rule-based procedures, the lack of public scrutiny on even some of its basic details (such as the agency’s funding), creates a “trust us” scenario that is antithetical to democratic ideals; especially those ideals embedded in the U.S. Constitution. In this sense, it is more “law-lite” than “law-like”.
Additionally, a critique that I won’t flesh out here (since I am still working on it), centers around the status of “thought” within a bureaucracy. That is to say, how does “thought” function within an organization—is it free and “removed” from the machinery, or is it located on the inside, and therefore bound to the axioms and procedures sanctioned by an invisible “rule by Nobody”? More on this line of inquiry another time: as a preliminary gesture, I would argue that the automation of targeted killing is built upon a disavowal of “thought” and “responsibility” – even if there are elaborate, even scientific procedures in place to ensure those killed receive the semblance of institutional justice.
McNeal opens the essay with an inescapable truth: bureaucrats of all stripes are intimately tied up in the kill-chain, and sometimes even carry out the killings. Whether it’s the military or the CIA, both organizations are intensely bureaucratic. Understanding the nature of bureaucracy is therefore vital in understanding the characteristics of modern-day state violence. “Dozens, perhaps hundreds of people make incremental contributions to a well-oiled killing machine, ensuring that by the time a target shows up in the cross-hairs of an operator he can rest assured that the target is worth killing” (p.4). What follows are some of the main themes that McNeal covers.
THE LEGAL BASIS FOR TARGETED KILLINGS
McNeal covers two sources of law that pertain to the U.S. program of targeted killings, domestic and international law.
Domestically, there are three sources of law (a) the president’s constitutional authority as “commander in chief”, the 2001 Congressional Authorization for the Use of Military Force (AUMF), and the National Security Act of 1947 that allows the president to authorize covert CIA action. The 2001 AUMF remains a controversial document since, in essence, it removed Congress’ ability to declare or stop war, by empowering the President to use all necessary and appropriate force against those it deemed responsible for the September 11 attacks.
In addition to military action authorized under the AUMF, the U.S. government also relies on covert action to pursue its counter-terrorism goals. As already mentioned, statutory authorization for this comes from the National Security Act of 1947, and Section 5 in particular. Most covert operations require presidential approval in the form of what’s known as a “finding”, a type of presidential directive. Since 9/11, the CIA has enjoyed “exceptional authorities” to kill and detain al-Qaeda targets on a global basis. On September 17, 2001, bush modified Reagan’s 1986 counterterrorism finding to give the CIA the broadest and most lethal authority in its history. Additionally, its important to note that the military’s Special Forces, the Joint Special Operations Command, can be “sheep dipped” into CIA command to circumvent domestic law. Related to this, the al-Qaeda Network Executive Order of 2003 enabled the military’s JSOC to undertake a global campaign subject to a matrix specifying particular types of operation (from intelligence to killing) without further Secretary of Defense of Presidential approval.
There are thus three main domestic legal categories of target: those targets under the AUMF (and the statutory National Defense Authorization Act), those under the Al-Qaeda Network Executive Order of 2003, and those under a covert action finding (although they can often overlap).
In terms of the legal justifications for going to war vis-à-vis international law, jus ad bellum, the Obama administration argues that targeted killings are justifiable according to the principle of self-defense. Article 2(4) of the United Nations Charter prohibits the use of force between states. There are two exceptions: authorization of force by the United Nations Security Council, and the exercise of the inherent right of self-defense under Article 51 of the UN Charter. The issue for the latter is whether the countries that the US strikes have ‘consented’, and whether, absent of such consent, the host nation is actually unable or unwilling to suppress the threat pose by the individual targeted. The U.S. sees itself as being involved in two types of conflict: the first, a “transnational non-international armed conflict” with no geographic scope. The second is a “traditional non-international armed conflict” in which a U.S. ally is fighting an insurgent group as a participant in a host country. The first is hotly debated in international law, with many arguing that a transnational non-international armed conflict can only take place in so-called “hot” battlefields. This “dual path” for defining America’s conflict with al-Qaeda allow the U.S. government targeting flexibility.
The creation of kill lists is an elaborate bureaucratic process. According to McNeal, the military’s kill-list creation process is more transparent than the CIA’s, although the agency’s is believed to the mirror the Pentagon’s in most respects. Indeed, the CIA and JSOC have integrated many of their procedures.
The kill-list creation process is undertaken through four main steps: identification, vetting, validation, and then nomination. Only then may they be nominated for placement on a kill-list (often with Presidential approval).
Names are developed for the list principally by their membership of an “organized armed group”. This is itself contestable. The ICRC rejects the idea that all members of an organized armed group are always targetable principally by their status, contending instead that the individual must be providing a “continuous combat function”. The U.S. rejects this. However, while the “status” of an individual may decide their legitimacy as a target prima facie, it is not the only variable the U.S. uses. Instead, a target’s status is augmented by their “effectiveness” within a network, producing a kind of cost-benefit analysis. To repeat, targets analysts are not simply looking to create a kill-list based purely on membership – they act in accordance with a doctrine known as “effects-based targeting”. This begins with identification of strategic objectives, from which flow decisions based on how eliminating targets will impact the enemy’s decision-making and activities, including second and third order effects. In short, analysts look beyond the immediate death of the individual to broader network effects. The target is thus more than the “individual” (as the “individuation of warfare” may imply) – it is the individual qua a node in the network. As McNeal affirms:
“While a single individual may be significant because of his status as a member of an organized armed group, to the analyst, the target’s importance is not based solely on his status, but more importantly on that target’s relationship to the broader operational system” (p. 31)
This social-network-based approach to targeting means that understanding the relationships between people, places, and things, is more important than the individual in isolation. This is called a “pattern of life” analysis, which aims to map into diagrammatic form the process-based relationship between key nodes. Based on this understanding of the milieu, bureaucrats then ask two main questions: 1. Is the individual critical to the group he is a member of? 2. Is the target vulnerable, that is, susceptible to an attack? In this way, seemingly “lower level” individuals might actually play a vital role in the network.
Underwriting this process is a bureaucratic paper trail. As analysts develop lists of targets, they create “target folders”, containing analyses of the targets, which can be drawn from different agencies and independently reviewed. The target folders are now in digital form, and the information is now maintained in what are known as Electronic Targeting Folders (ETFs) within a database colloquially referred to as a “disposition matrix”, which is “multidimensional”—much like a law-enforcement model of archiving “criminal” behavior. The information in a related database sometimes referred to as the “playbook”, lays out procedures for selecting and targeting suspects drawn from the disposition matrix.
Once an individual is identified, “target vetting” takes place – by which the government integrates the opinion of “experts” from the intelligence community about the tactical costs and benefits associated with killing the target.. Next, a “validation” step takes place to ensure that proposed targets meet the objectives outlined in the strategic guidance. This can range from lawful considerations, to perceived public opinion, to the state of the enemy’s war making potential.
For nomination, a vote takes place on whether a name should be nominated for inclusion on a kill-list – what is colloquially referred to as a “Terror Tuesdays”. In the nominations stage, the State Department Legal Adviser and Department of Defense General Counsel as well as other top lawyers have the opportunity to weigh in with their legal opinions. Specifically, the counterterrorist adviser convenes a meeting of National Security Council deputies from the appropriate agencies (i.e. CIA, FBI, DOD, State Department, NCTC and so on). Potential targets are displayed on a PowerPoint presentation, with truncated details from the ETFs about their life. The slides are colloquially known as “baseball cards”. According to press reports, in April 2012, the vetting process for adding names to both CIA and JSOC kill lists were revamped to allow the president’s counterterrorist adviser and staff have an earlier input. The goal of the Obama administration’s reform was to formalize the approval and clarify it as a system. As such, much of the interagency vetting and validating is now centralized through the National Counterterrorism Center (NCTC).
Military and intelligence “kinetic” targeting protocols are very similar, only with different chains of command. To carry out the killing, the “attacker” must ensure he can positively identify the person is a legitimate military target (“positive identification”). This process must adhere to the principle of distinction found in Article 48 of Additional Protocols I. After finding the target, the next step is to “fix” the target, based on surveillance and pattern of life analysis – tracking the target to anticipate their location. If positive identification of a target fails (i.e. perhaps there isn’t geospatial / and or signals validation), the target is no longer a lawful one, and no operation will take place.
After positively identifying a target, the next issue is to identify “collateral objects” and other civilian or noncombatant personnel. In simple terms, a commander will essentially “visualize” the blast zone of a strike using available technical data about the munitions and local population – a process known as “Collateral Damage Methodology” (CDM). The intelligence community follows a similar truncated multi-step process.
This process has been computerized with “FAST-CD” (Fast Assessment Strike Tool—Collateral Damage), a piece of software used by both the military and the CIA to asses weapon effects, and collateral damage mitigation, based on empirical data and “physics-based computerized models” for collateral damage estimates. “Mitigation” techniques aim to reduce the potential for collateral damage. For example, population data is fed into a “Population Density Reference Table”, which estimates the population density per 1,0000 square feet during day, night, and any other special events. Together, these variables create a “collateral hazard area”. If collateral damage is “unavoidable”, final authorization for strikes goes to a pre-determined approval authority to make what is known as a “proportionality assessment”. This individual looks at the “Casualty Estimate Worksheet” and compares it to the Non-Combatant Casualty Cut-Off Value (NCV). If the estimate is below the NCV, a “lower level” approval authority may authorize the operation. If it exceeds the NCV, a process known as Sensitive Target approval and Review (STAR) is triggered. In this case, either the Secretary of Defense or must approve STAR targets. A similar process exists for CIA targets.
The proportionality assessment needs to be contextualized. In Afghanistan, where “winning hearts and minds” has been official counter-insurgency policy, potential collateral damage is to be avoided at all costs. In Pakistan, however, the situation has been different: the CIA is pursuing a counter-terrorism operation, where the opinion of the local population is largely irrelevant to any strategic aim. In short, the substance of the proportionality analysis is geographically unique—in some cases biopolitics is trumped by thanatopolitics.
McNeal details the bureaucratic protocols that underpin the U.S. program of targeted killings – which is similar for both the military and CIA. In either case, he identifies shared strands of accountability: bureaucratic, legal, professional, and political. He asks us to see the personnel and procedures involved in targeted killings as a multi-agency “public” unto itself: a public that self-regulates through a web of overlapping procedures that produce an overall expectation of accountability. Bureaucratic accountability is thus largely “endogenous” to an organization, and rests upon the fair assumption that individuals adhere to statutory protocol. Exogenous accountability, such as the accountability to politicians, may also be present, although oversight of the intelligence community, as McNeal notes, is difficult. Moreover, there is little political capital gained in tinkering with targeting. There is therefore an incredible amount of inertia: organizations revolve around the lowest common denominator of decision-making; therefore bureaucratic accountability may simply be self-serving, based on “insular ways of thinking” (p. 115). McNeal even goes one step further to state that “with so many people involved in the targeting process, the collectivity itself may have caused an error while the public has no individual to hold to account” (p.115).
That targeted killing mirrors many other government bureaucracies in liberal democracies is hardly surprising—war, law, and government all beat to the similar drum of enlightened rationality. For many, what marks this program as unique is the lack of public transparency and independent review that surrounds it. But perhaps there is something far more insidious at work here. As vertical assassination becomes the norm, many of us will become tranquilized to its horror (not to mention its novelty) by the bureaucratic assurances of procedure, protocol, rules, and regulations. But if those rules and regulations are not open for debate, viewed only by a handful of people, then they resemble something like the “Star Chamber” used by Kind Edward to create a parallel system of justice for the English monarchy. And yet, we can go even further: if the CIA and military’s rules and regulations were open for all to see, would the problem of bureaucratic killing go away? Herein lies the crux of the difficulty—of knowing what the critique actually is. It is difficult for many to argue with the “rationality” of selecting only individuals to assassinate. Endless refrains of “its better than cluster bombs” tend to drown out those voices that see past the comparison.
The real problem, for me at least, lies in the disavowal of thought. Bureaucratic killing is not dangerous simply because it abstracts the kill-chain and rationalizes death. No—it is dangerous because it removes the necessity to think. From SMART-CD, to presidential directives, to “casualty estimate worksheets”, to automated aircraft: the human condition is overtaken by a toxic form of passivity created through an ecosystem that removes the need for judgement and expels thinking from its morbid calculations.