By Kristina Wong

From The Washington Times | Original Article

Lethality of collateral damage ‘must not be excessive’

The Pentagon has loosened its guidelines on avoiding civilian casualties during drone strikes, modifying instructions from requiring military personnel to “ensure” civilians are not targeted to encouraging service members to “avoid targeting” civilians.

In addition, instructions now tell commanders that collateral damage “must not be excessive” in relation to mission goals, according to Public Intelligence, a nonprofit research group that analyzed the military’s directives on drone strikes.

“These subtle but important changes in wording provide insight into the military’s attemptsto limit expectations in regards to minimizing collateral damage and predicting the lethal effects of military operations,” Public Intelligence said in a recent report.

The number of civilian casualties caused by U.S. drone strikes is a point of contention among Washington, human rights groups and countries where strikes are conducted, chiefly Afghanistan, Pakistan, Libya, Yemen and Somalia. Because the strikes are classified operations, the U.S. typically does not acknowledge when they occur, or reveal how many combatants and civilians are killed or injured.

An official for the Air Force — the service primarily tasked with carrying out drone strikes — said “tactical directives have changed a number of times over the years to tackle collateral damage concerns not only from aircraft and helicopters but from mortars and other weapons that deliver effects beyond line of sight.”

The official, who requested anonymity to discuss security matters, declined to say how the directives have changed or what the collateral damage concerns are, citing “operational security.”

Military officials, however, said the Joint Chiefs document is one of several that instruct commanders on conducting drone strikes, as well as theater-specific rules of engagement and the overarching Law of Armed Conflict.

The October 2012 document was published on a Pentagon website several months ago but has since been removed, said Public Intelligence founder and editor Michael Haynes, who obtained and analyzed the documents.

A military official confirmed that the document is being used, among others, to provide guidance for drones.

Human rights groups say such secrecy prevents scrutiny and accountability for civilian casualties. Amnesty International and Human Rights Watch have released reports focused on Pakistan and Yemen that say the strikes could be illegal and that the U.S. has killed more than 4,700 people, including more than 1,000 civilians.

Administration officials say the strikes are legal because the U.S. is at war with al Qaeda and its associates. They also insist there is a wide gap between the government’s civilian casualty count and those of human rights groups.

“Before any strike is taken, there must be near-certainty that no civilians will be killed or injured — the highest standard we can set,” President Obama said in a rare acknowledgment of the strikes in May 2013.

Public Intelligence conducted a word-for-word analysis of an instructional document from the chairman of the Joint Chiefs of Staff titled “No-Strike and the Collateral Damage Estimate Methodology,” which was provided to the American Civil Liberties Union in 2009, and a version of the document that was updated in October 2012. The ACLU filed a Freedom of Information Act request to obtain the 2009 version, which is posted on its website.

The 2009 version directs military personnel to take reasonable precautions to ensure that civilians are not targeted in attacks; the 2012 version says service members should “avoid targeting” civilians.

“A requirement to ‘ensure’ that civilians are not the subject of attacks is changed to an admonishment to ‘avoid targeting’ civilians,” Mr. Haynes said.

Moreover, commanders had been instructed to “consider the military necessity for attacking the target, proportionality of the means planned, and reasonableness within the framework of operational objectives.” The modified language tells leaders that collateral damage “must not be excessive” in relation to mission objectives.

What’s more, the updated version adds a paragraph that says the process for estimating collateral damage outlined in the document “does not account for secondary explosions” caused by the strike, such as of a weapons cache or fuel tank, because those explosions “cannot be consistently measured or predicted.”

“The section does say that commanders should be ‘cognizant of the risks’ from secondary explosions, but this is fairly weak wording and does not imply necessary compliance,” Mr. Haynes said.

The earlier version also defines “collateral concern” as objects that are “not considered lawful military targets” under the Law of Armed Conflict. The updated version defines the term as objects “located inside the collateral hazard area.”

The guidance applies only to military drone strikes and not necessarily to those carried out by the CIA, although the military and the CIA work together on some drone operations.

Citing an increase in drone operations last year in Libya, Air Force officials said the number of military drone strikes in 2013 is expected to be lower than in 2012. Officials said military drones last year led to or helped ground troops kill and/or capture more than 1,850 enemy combatants.

Officials declined to specify how many enemy combatants were killed or captured. Pentagon statistics show that 361 Hellfire missiles and six 500-pound laser-guided bombs were fired in 2012. In 2011, 432 Hellfire missiles and 19 500-pound laser-guided bombs were fired.

Military officials say they take great care in differentiating civilians from combatants and sometimes wait several weeks until a target is away from relatives and civilians. But they also acknowledge that it can be difficult to assess civilian casualties or other collateral damage, especially when a target is hiding in a structure or under foliage.

Given this difficulty, the collateral damage estimate “is our best means of minimizing civilian casualties and damages to nearby structures,” said a spokesman for Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff.

“I have talked to Pentagon officials that say they are very, very careful,” said Sarah Holewinski, executive director of Civilians in Conflict. “But it’s not enough to have a conversation and have to trust. There should be a lot more transparency.”

Despite Mr. Obama’s pledge for more transparency on drone strikes, the administration “continues to answer legitimate questions and criticisms by saying, ‘We can’t really talk about this,’” said Naureen Shah, advocacy adviser at Amnesty International.

Senior administration officials recently met with representatives of human rights organizations to discuss reports that the groups published in October, but told participants not to reveal who attended the meetings, where they met or what was discussed.

“To me, this is just yet another example of the unreasonable level of secrecy surrounding this program,” said Letta Tayler, author of Human Rights Watch’s report on U.S. drone strikes in Yemen. “We hope that the U.S. will move swiftly to acknowledge basic details of these strikes.”