Conduct- versus Status-based Targeting in Yemen (and Pakistan)

Greg Miller reports in the Washington Post that the CIA is seeking authority for “signature strikes” in Yemen. Miller defines signature strikes as those that “hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives.”


Miller’s description of the “signature strike” authority would seem to suggest that the CIA—in Pakistan and now potentially in Yemen—operates under targeting rules that are either a very liberal interpretation of Direct Participation in Hostilities (DPH) or that are status-based. This is a stunning revelation for two reasons.


First, irrespective of whether the CIA is employing DPH or status-based targeting, the authority Miller describes suggests that the CIA considers its targeting authority stems from the existence of an armed conflict—actually, two armed conflicts: one in Pakistan and one in Yemen. Because the targets of these strikes—various militant organizations in Pakistan and AQAP in Yemen—are not states, the existence of an armed conflict turns on the organization of the parties and the intensity of the hostilities between the United States and these organizations. While the intensity of U.S. drone operations in Pakistan in 2009-2010 almost certainly rises to the level of an armed conflict, the intensity of U.S. operations in Yemen (although increasing) does not seem to rise to the level of an armed conflict (10 airstrikes in 2011, just 10 airstrikes so far this year). That said, the United States may be engaged in an armed conflict through intervention into Yemen’s civil war, assuming that the intensity of hostilities between AQAP and the Yemeni government are sufficient to constitute an armed conflict. 


The existence—or not—of an armed conflict is a question of fact and it is very important. When an armed conflict exists, the law of armed conflict is triggered, imposing certain constraints and providing certain authorities to the parties to the conflict. For example, Common Article 3 provides a minimum level of treatment for captured or wounded non-state fighters in an armed conflict not of an international character. At the same time, the existence of an armed conflict vests a state with the authority to use force as a first resort. It also provides soldiers with combatant immunity. Simply put, what would be murder outside of an armed conflict may not be within the context of an armed conflict.


But it is also the source of the notion of unprivileged belligerency. You may remember this from the Bush administration’s phrasing: unlawful enemy combatants. The law of armed conflict defines two classes of people: combatants and civilians. Combatants are soldiers: uniformed members of the armed forces of states. Civilians are everyone else. Anyone who is not a uniformed member of the armed force of a state is a civilian. Combatants are entitled to prisoner-of-war status when captured, they enjoy combatant immunity, but they are also subject to status-based targeting. That means combatants can be targeted anytime, anywhere, unless they are hors de combat. Civilians, on the other hand, are protected from targeting and attack unless and for so long as they are Directly Participating in Hostilities. 


DPH is a concept that has garnered a fair amount of attention and controversy since September 11, 2001. The limiting language—unless and for so long as—has generated debate over the proverbial farmer-by-day, fighter-by-night and whether he can be targeted while he’s using his hoe or only when he bends low to pick up his rifle. A liberal interpretation of DPH has evolved, recognizing that some civilians join non-state armed organizations just to be fighters, and they are fighters all the time. As such, they assume a continuous combat function and are targetable all the time, regardless of whether they are then performing a hostile, much like a combatant. But this understanding of DPH is by no means uncontroversial nor universally accepted. 


The authority described by Miller—“hit targets based solely on intelligence indicating patterns of suspicious behavior, such as imagery showing militants gathering at known al-Qaeda compounds or unloading explosives”—suggests that the CIA is adopting either a continuous combat function approach or a status-based approach to targeting. That is, the CIA believes that people who gather at known al-Qaeda compounds or unload explosives are fulltime fighters, satisfying the continuous combat function criteria, and are therefore always targetable. Alternatively, the CIA may be adopting a status-based targeting approach to non-state fighters. Such an approach would violate extant law of armed conflict but may be a data point indicating an emerging revision of the customary law governing targeting.


Finally, notice that the employees of the CIA, because it is a civilian agency and its employees are not uniformed members of the armed forces of the United States, do not benefit from combatant immunity. That is, they too are civilians directly participating in hostilities. 

Unmanned Aerial Vehicles and Limiting Factors

Slouching Towards Columbia has dedicated a fair amount of space over the last two weeks to unmanned aerial vehicles ("drones")--a topic with which I'm somewhat familiar. One post, "Drones and the False Allure of Impunity," assesses a Zenko piece about the future of drone operations in Afghanistan if Pakistan were to oust our drone bases there. Trombly notes rightly:

The ability of the United States to conduct drone campaigns and other so-called standoff strikes is in fact heavily constrained by geopolitical and logistical considerations. While the drone aircraft may be unmanned, they are just as dependent on bases, ground crews, and a logistical tail as their manned counterparts. So too are they dependent on permissive airspace.

To which I would that drones are also dependent on human-source intelligence and the ability of intelligence agencies to operate in theater. Although the topic of drone reliance on HUMINT has been fairly downplayed, one need only look at the suicide bombing of FOB Chapman to understand it. FOB Chapman was manned by CIA agents who were looking over the border from Afghanistan into Pakistan to support the U.S. drone campaign in Pakistan. One of the sources the CIA was operating, Humam Khalil Abu-Mulal al-Balawi, a Jordanian doctor, proved to be a triple agent, tasked by Tehrik-e-Taliban Pakistan with attacking FOB Chapman. The TTP targeted that base because of its role in drone operations in Pakistan and because the TTP were one of the primary groups targeted by the drone campaign. 

I would also add that the comparison between CIA operations in Pakistan and JSOC operations in Yemen is not necessarily apt. In none of the reporting I've seen regarding drones in Pakistan has there been anything like Foust's depiction of 300-500 U.S. troops on the ground in Yemen supporting UAV operations. If the CIA is able to operate drones in Pakistan with a lighter footprint--and one that is likely reliant on contractors rather than U.S. military personnel--then there is little reason why the CIA could not do so similarly in Yemen. The choice for JSOC over CIA operations in Yemen--and the attendant larger JSOC footprint--likely has more to do with the legal framework underlying U.S. operations in Yemen. That is, the United States views its operations in Yemen as part of an armed conflict--either with AQ proper or through intervention in Yemen's IAC with AQAP--and, as such, must employ uniformed military personnel. As opposed to the apparent view that of the United States that it is not engaged in an armed conflict in Pakistan -- a point of view with which I disagree, at least with respect to the TTP during 2009-2010.

Meaningful Limits

Colin received quite an honor today. After leaving a comment on a blog by Connor Friedersdorf's blog yesterday, Connor took an entire post to elevate and explain Colin's comment--even preemptively defending it in the face of "liberal commentators." In Colin's comment, he makes a point about the text of the Commerce Clause--the clause of the Constitution that vests Congress with the power to regulate commerce between the States. Colin rightly notes that 

[t]he Commerce Clause does not say that Congress has the power to regulate trade with foreign countries, the Indian tribes, and -- oh by the way -- also do whatever it pleases so long as it even tangentially has anything to do with commerce.

Connor, for his part, then launches into a discussion of whether liberals are wrong to cast aspersions of partisanship on the conservative judges for striking down ACA. He rightly defends the intellectual honesty and consistency of Thomas's position but then says this about the other conservative justices: 

The rest of the conservative justices face a more difficult decision. All are to varying degrees supporters of both stare decisis and the notion that a core function of the Constitution is to divide power among the federal government and the states, putting meaningful limits on Washington's power. Weighing in on the Affordable Care Act, they're inevitably going to undermine at least one value in which they earnestly believe.

But Connor's dilemma is false. The doctrine of stare decisis and the desire for "meaningful limits" on the Commerce Clause are not in conflict. In fact, the Court could--and should--uphold the ACA while observing both stare decisis and reinforcing meaningful limits on the Commerce Clause. As Professor Koppelman wrote in Salon last week:

But there already is a pretty big limit on the commerce power:  United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs.  Everyone can see them. Lopez placed limits on federal power.  Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.

What's more, Lopez interacts with another well known Commerce Clause case from the 1990s, Morrison v. Olson, to set a hard boundary on the extent of the Commerce Clause power. These cases, then, provide us with a meaningful limit on the power of Washington and they provide precedent. Upholding the ACA would violate neither of these and would adhere to an even more venerable Commerce Clause case (satisfying stare decisis) while not dismantling the existing limitation on Congress' Commerce Clause authority (satisfying the meaningful limits requirement).

Iran and Oil Shocks

On Saturday, Steve Yetiv did yeoman's work in debunking the threat of an oil shock if the United States or Israel were to strike Iran in the Washington Post. As is always the case in matters of geopolitics and oil, analysis is something of a mirror game. Yetiv rightly explains the reasons why an Iran strike would be of limited impact on supply. And he's right that with little impact on supply, price should be stable. But the same could be said for conditions today and, although price has been falling over recent days, fear--largely unfounded fear--and naked gambling (speculation) have pushed prices well over that justified by demand.