What’s happening in Syria?

On April 4, in the rebel-held town of Khan Sheikhun, poison fell from the sky. The Syrian Army (although President Bashar al-Assad denies any wrongdoing) used chemical weapons on its citizens in the most recent atrocity committed in the course of a long civil war. As hundreds were rushed to hospitals, officials began to suspect that Syria used some form of sarin gas (the use of sarin has been confirmed). This chemical pushes neurotransmitters into hyper-drive, so your body then starts to overproduce and excrete bodily fluids.

This sickening reality of chemical weapons is why the world has long banned the use of them. Officially, the U.N. General Assembly approved the Chemical Weapons Convention, which prevents the production, stockpiling, and use of chemical weapons. Syria became party to this treaty in September 2013.

U.S. ambassador to the United Nation, Nikki Haley, quickly condemned the attacks and asked for the U.N. to take concrete action, while criticizing Russia for their continued support of the Assad regime. Haley closed her remarks by stating that, “[w]hen the United Nations consistently fails in its duty to act collectively, there are times in the life of states that we are compelled to take our own action.”

The United States followed through with their ‘own action’ on April 6. President Trump made the call to launch 59 Tomahawk missiles, their target, the Al-Shayrat airfield in Syria. This attack, marked Trump’s largest military maneuver since taking office. Trump stated that he decided to retaliate against Syria to deter future use of chemical weapons.

Many in Congress praised the action, however others criticized Trump for not seeking congressional approval. Moreover, it appears that the U.S. did communicate to Russia that an attack was imminent, which troubled many due to the administrations alleged ties to Russia.

Now many are asking, what does this mean for America’s continued role in the Middle East? It appears that the United States is increasing its military presence in the Middle East. On Tuesday, April 11, the U.S., in a coalition strike against ISIS, conducted a drone strike, accidentally killing 18 ally troops in Syria. Moreover, the U.S. dropped ‘the mother of all bombs’ or GBU-43/B Massive Ordinance Air Blast (MOAB) in Afghanistan against ISIS on Thursday, April 13, killing an estimated 94 ISIS fighters, according to an Afghan official. Three high profile military operations in a short period of time seem to clarify that Trump will prefer using the U.S. military’s capabilities to their fullest and showy capacity versus President Obama’s preferred method of targeted drone strikes. Moreover, is this ramping up of military strikes a sign that the Trump administration will favor bombs over diplomacy? And if so, who’s the next target?

CIA back in the drone business

My very first piece for this blog explored the fact that covert warfare is becoming, or even has become, the international standard for conducting hostilities. And with the President of the United States granting the CIA authority to conduct lethal drone strikes once again, it seems that the United States is committed to wage these hostilities further and further away from the obligations within traditional modes of conflict.

The new rules reportedly once again allow CIA supervisors managing the covert operations to give the clearance for drone strikes. The previous administration placed drone strike activity under Pentagon control, and only then under limited capacity outside direct military action. Now, the United States is returning to an original framework regarding CIA having exclusive authority to conduct drone strikes independent of executive need to be in the know.

This shift is legally important both domestically and internationally. Targeted killings done by drones from the CIA fall under Title 50 of the United States Code, while the Department of Defense use is governed by Title 10 and includes far more restrictive and oversighted procedures. But more than that, as former Marine Corps Lawyer and Georgetown law professor Gary Solis has mentioned many times, “CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants.” And there arises the concerning issue.

International law is sorely lacking on issues of espionage, namely because espionage is conducted as state practice. Most laws relevant to spying are domestic in nature. No state desires to bind its capacities to spy based on a treaty. The rules of espionage and proper conduct by intelligence communities develop as customary international law by state practice. This makes it so much more important to scrutinize new practice techniques of the intelligence communities. Left alone long enough, they become the acceptable practice for states.

But international law does provide the per se illegality of intentional killing by those lacking combatant privilege. By shifting authority back to the CIA to conduct drone strikes, the United States is moving away from internationally defensible and accepted norms regarding the conduct of hostilities. This will only further international condemnation of illegal use of strikes abroad, not just on grounds of violation of sovereignty, but now so on grounds of unprivileged combatants. But this is not to say that the United States does not have a legal argument at its disposal.

Footnote 44 of the OLC Awlaki memorandum provides what is yet the best argument regarding CIA drone usage. Quoting eminent scholar Richard Baxter, the United States takes the position that it is important to not be confused with “acts punishable under international law and acts with respect to which international law affords no protection.” Strictly speaking, international law does not prohibit civilians from taking direct part in hostilities. Granted, it won’t convey combatant’s privilege upon them either. This footnote goes on to say, “lethal activities conducted in accord with the laws of war…do not violate the laws of war by virtue of the fact they are carried out in part by government actors who are not entitled to the combatant’s privilege.” And there does exist the incorporation doctrine of Article 43 Protocol I (applicable only to IACs and not the current situation where CIA drone strikes most likely are to take place) which arguably would grant privilege status to CIA operatives. But this means declaring the CIA as a part of the military structure (something which would require a new statutory charter for the CIA).

But why do we care? We care because of mistakes. The laws of war, command responsibility, title 10, and the like all function to ensure that the seriousness of actions taken in war are rooted to an individual we can charge and punish; title 50, the lacking laws on espionage, and the CIA do not. This means the shift allows for a greater latitude of drone usage with an almost impossibility for assigning responsibility for prosecution.

It may not matter as to the results on whether a drone strike is conducted by a military unit or the CIA. The analysis to engage in hostilities will very much be the same according to the laws of war. But we should all be concerned on moves that reduce personal responsibility for actions in war. Drones, first, work to decrease and impersonalize the acts of war, and now CIA usage further hides responsibility behind a screen. I do not know where this will lead in practice, but we should all be concerned at making the ability to unleash the violence of war accessible to civil analysists who certainly would experience tunnel vision on the importance level of the targeted actor. Causalities will only rise because of this.

Becoming Complacent with The Laws of War is not an Option

Civilian casualties are an unfortunate and yet expected part of the collateral damage incurred during armed conflict.  Nations in the international community, however, have nonetheless gone to great lengths to ensure that civilian casualties not be written off.  A recent article on Defense One explains that the Trump Administration plans potential relaxing of the rules meant to limit civilian casualties in counter-terrorist operations.  This would mean that “areas of active hostilities” would have fewer rules of engagement, especially in conducting drone strikes and counterterrorism missions outside conventional war zones.  This is not a new practice; President Obama issued a similar declaration in Libya which involved a prolonged air campaign that drove ISIS from the city of Sirte.  The Trump Administration’s plan would only be temporarily removing constraints on airstrikes and raids with the intent to target individuals suspected of being militants, and the initial plan would serve as a test to determine if the government can more broadly extend the relaxed rules of engagement. 

Allowing a greater range of air strikes and raids has previously proven effective in driving terrorist fighters out of cities and hiding.  Generally, States must distinguish between military objectives and non-military objectives for targetability, and under international humanitarian law and customary international law, civilians are never targetable.  So long as civilians are not the principle object of the attack,  however, collateral damage to civilians is often justifiable following a proportionality analysis to determine whether the military advantage gained outweighs the loss of civilian life and property.  If the military advantage gained does not outweigh the loss of civilian life, the campaign cannot continue.  The United States could easily make the argument, and be well supported by individuals on both sides of the aisle, that the distinct military advantage of eliminating terrorist group presence in these cities is a significant advantage not only for the United States but also for the other countries engaging ISIS. 

                  There are two fundamental reasons why such an approach could be a strategic nightmare for the United States.  First and foremost, if the United States loosens the rules of engagement regarding civilian casualties it will not be incompliance with international humanitarian law or customary international law.  Both indicate that civilians may not be the direct object of a military attack.

 Second, continuing to relax the rules of engagement in relation to civilians could severely jeopardize the United States’ mission in fighting ISIS.  If the United States hopes to succeed in the conflict in the Middle East, it must have the support of the American people and nations, specifically those within the war-torn regions.  If civilians are the constant indirect or direct target of attack, the United States will fail to maintain any good-will relations that have been built.  The people in these regions have been ravaged by war for years  and civilian casualties are already excessive.  For example, in Yemen, one of the countries already declared to be an “area of active hostilities” there is a significant number of civilian casualties.  If this trend continues, the United States could risk upsetting the delicate relations between itself and the people of these war-torn countries by becoming the main force of their suffering.  The United States must maintain its role as protector rather than attacker.

 While expanding the rules of engagement could have the effect of successfully eliminating more terrorist fighters and threats, it could have the extremely dangerous effect of turning the civilian population against the United States.  Abiding by the customary rules of engagement will enable the United States to maintain the moral high-ground in the continuous fight against terrorism both domestically and internationally. 

March 6 Executive Order

Dear President Trump,

One benefit to being President is that you have an entire army of government bureaucrats to weigh the pros and cons of any idea that pops into your head. This begs the question, what are you doing?

Your latest Executive Order issued on March 6, 2017 (and going into effect on March 16) is a second attempt to “keep America safe.” From what exactly? As those of us who make up your constituents have unfortunately come to expect, your administration has still offered no facts to indicate that nationals from the remaining six targeted countries – Iran, Yemen, Sudan, Libya, Somalia, and Syria – pose a unique risk to national security. And DHS has confirmed that in fact, people from these countries pose no such risk.

The Executive Order cuts the refugee program to 50,000 refugees and still bans Syrian refugees in renewable 120-day increments, essentially creating an indefinite ban. This is despite consistent evidence indicating that refugees pose no increased risk to national security and that accepting refugees is instead a “hugely profitable investment” for the United States economy.

Although the Order now does not provide minority religions preference (kudos!), the constant anti-Muslim fearmongering by the Administration provides little comfort that the intent behind the order is not still to institute a Muslim ban. Furthermore, the rhetoric coupled with the mere image that the United States is banning people based on their religion fits precisely into anti-American terrorism propaganda and fuels recruitment.

So, what is the ultimate goal, President Trump? If it is, in fact, “protecting the nation from foreign terrorist entry into the United States,” it might be helpful to do some research. Because what you have done today may manipulate your base for now, but it will certainly not protect Americans.

Concerned citizen,

Alison W. Davis