America’s Shadow Warriors: Legal Dimensions of Special Forces and the Targeted Warfare

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Part One: Response to the Threat

By TARA McKELVEY
Carnegie Fellow

U.S. law defines covert action as operations that are designed “to influence political economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.” ¹ These actions may not be secret.  Special operators have ventured into Pakistan to work on psychological operations, carrying cameras and notebooks to record the opening of a girls’ school, for example, on a covert mission to influence public opinion in that country.  In an operation that failed, three of the special operators were killed by the Taliban in February 2010, and news of their deaths appeared in U.S. newspapers. Yet despite the obituaries, the activities of many soldiers and officers in U.S. Special Operations, working in Pakistan and in other countries, and the fact that they are operating on a regular basis in sovereign nations such as Pakistan, have not been publicly acknowledged by U.S. government officials.

There are few people in Washington who have had more experience in conducting covert operators or in overseeing this type of shadowy government work in South Asia and other regions of the world than those who have worked for Joint Special Operations Command.  They are also among Washington’s biggest proponents of this type of military action, and they believe that the military strikes conducted by Special Forces with the assistance of unmanned aerial vehicles, or drones, as they are commonly known, are supremely efficient. As one retired officer, an ex-Joint Special Operations soldier, spoke on a summer evening in a restaurant in northern Virginia about the air strikes, he swept his right hand toward the table in order to show just how precise the aircraft were in their targeting of terrorists and militants, pointing to a spot in the middle of the table as he demonstrated the accuracy of the strikes. The unmanned aircraft, he declared, do not go astray.

Retired generals, Obama administration officials, and deputies on the National Security Council are enthusiastic about Special Forces and other types of targeted warfare that are used to wipe out terrorists and extremists; indeed, these clandestine strikes have become the signature military strategy of our time. The Pentagon will purchase more unmanned aircraft than manned ones this year and will train more drone-aircraft pilots than those who will fly all of the bomber and fighter jets combined. Special Forces carry out the bulk of these kinds of operations in Afghanistan and train local troops in Pakistan, Yemen, and in other countries, but the Central Intelligence Agency (CIA) has also become intimately involved and its participation in these programs marks a shift in priorities at the agency. One individual who worked for both the Bush and Obama administrations, a former CIA lawyer, is familiar with the policies of both presidents and compared the two administrations. The number of killings that are being carried out by the CIA under President Obama is “unprecedented,” he said. “This is way beyond anything I’d experienced in the past 25 years.” ² Obama administration officials talk about the “hygienic” aspects of targeted warfare, touting the precise targeting of both the helicopter gunships and the unmanned aerial vehicles, specifically describing the remotely-controlled aircraft and their range of 460 miles and their ability to hover above a target in Afghanistan, Pakistan, or some other faraway country for more than 20 hours at a stretch. ³

Yet for all of the feats that the Predator aircraft and helicopter gunships are able to perform, they nevertheless rely on intelligence gathered by human beings to carry out their missions and therefore may also hit the wrong target when the information turns out to be wrong, as one of the drone aircrafts did on a mountain road in Afghanistan in February 2010. A Predator drone hovered above the road in Uruzgan Province, guided by U.S. Air Force pilots who were working in offices 7,000 miles away at Nevada’s Creech Air Force Base. ⁴ The jet was about the size of a Chevy Impala, and its engine sounded like a leaf blower roaring in a neighbor’s yard, at least while it was on the tarmac; when the aircraft was flying 20,000 feet above the mountains of Afghanistan, the engine made no sound at all. The aircraft remained silent and invisible for more than three hours above the mountain road as it recorded images of a pickup truck and two minibuses that were headed for Kandahar.

Some time earlier, a U.S. ground commander had heard that insurgents in Kandahar were planning an attack on American soldiers, and the commander believed that the people riding in the pickup truck and the minibuses were part of the plot. The aircraft collected footage of the vehicles, but the images were bluish-green and grainy and showed only bearded men riding in the back of the truck, ⁵ and  the people inside of the truck and in the minibuses were hidden from view. Nevertheless, the attack went ahead. At about 8:30 on that morning, February 21, American forces fired Hellfire missiles and aerial rockets at the pickup truck and the minibuses, killing about 20. As it turned out, they were just a group of friends and relatives who were headed for Kandahar, and they had nothing to do with the Taliban. Several women in the vehicles were wearing brightly colored clothing, which should have alerted the Special Forces to the fact that they might not actually be Taliban militants, ⁶ but nevertheless the strike was launched, These women, along with a six-year-old and a nine-year-old child, both of whom were unlucky enough to be hanging out near the road when the missiles were fired, were badly wounded in the assault. ⁷

In contrast, the attacks from unmanned aerial vehicles are launched from “over the horizon” where it is difficult to distinguish between civilians and enemy combatants and, as one retired general who served in Iraq explained, may do more harm than good.  “The persistence of these attacks on Pakistani territory offends people’s deepest sensibilities, alienates them from their government, and contributes to Pakistan’s instability,” wrote David Kilcullen, who has served as an adviser to Gen. David Petraeus, in a <em>New York Times</em> op-ed piece in May 2009. These experts claim that these U.S.-directed operations against terrorists in Afghanistan, Pakistan, and in other nations have inflamed anti-U.S. sentiment in these countries and in other places around the world to such an extent that they have actually increased the threat of a future attack on the United States.

U.S. officials estimate the number of deaths from drone strikes at 20 over the previous 30 months. ⁸ These numbers contradict a widely-cited report by a Washington-based organization called New America Foundation that stated in excess of 150 non-militants have been killed in the strikes in Pakistan during that time period. Critics of the stealth warfare believe that the U.S. officials’ attempt to downplay the targeting errors is a grave mistake.

Whether the strikes kill a large number of civilians or not, critics argue that these operations have antagonized people who live in Pakistan to a significant degree and have created a great deal of ill will toward the United States and  sympathy for the targets of the attacks: Recent public-opinion polls, for example, show that Al Qaeda is more popular than the United States among people who live in Pakistan. Meanwhile, people in Afghanistan have become increasingly suspicious of the Americans who are trying to help rout the Taliban and militants. Philip G. Alston, a law professor at New York University and the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, has investigated the targeted killings that have taken place in Afghanistan, and he has spoken with people who live in Kabul and other cities. Many of them believe that “‘Americans think they can come in and kill anyone, and they do,’” he explained. “That perception, as silly as it was, is very hard to dispel.” ⁹

In fact, determining the ratio of civilian-to-militant deaths in these strikes is difficult, if not impossible, to determine because many of the assaults occur in remote regions of Pakistan where journalists are not been able to travel to speak with people in the area. “With each one, it would be impossible to calculate precisely what the collateral damage would be,” explained Paul R. Pillar, the former deputy director at the CIA’s Counterterrorist Center. After a strike has been launched, he said, “The Pakistanis may get some sense of what the casualties were, but even for them, you’re left with an estimate. I think for us [the estimate is] based mainly on subsequent overhead imagery. You count bodies. But, you know, bodies can be moved, and sometimes they’re not visible, and often you don’t know what’s a death and what’s not.” ¹⁰

Critics of U.S.-directed stealth warfare believe that the data from these air and ground strikes in Pakistan, Yemen, and in other countries is incomplete, and moreover that the shadowy activities of the special operators have not been examined in detail, nor have these tactics been debated in a robust manner by the public; moreover, these critics believe that an overall tally of American successes, both in the accuracy of the strikes against terrorists as well as of their ability to reduce the threat of terrorism against the United States, has not been done.

Indeed, some counter-terrorism experts believe that the covert warfare is having a destabilizing affect on various other countries and is causing the United States to lose ground in the global war of ideology, shifting the balance of power toward the terrorist groups. These experts concede that the drone strikes have killed leaders of Al Qaeda and militant groups in Pakistan such as Mehsud, but they point out that terrorist groups are not like mob families that are wrecked when their leaders are captured or killed. When a terrorist group loses its leader, the organization dissolves in only one out of five cases. For these reasons, some military analysts believe that the U.S. strategy of eliminating the leaders of extremist organizations is misguided.  “If the boss gets killed, they have to find another boss,” said Andrew Bacevich, a professor of international relations at Boston University and the author of Washington Rules: America’s Path to Permanent War. “But simply killing successive bosses with the expectation that will lead to the end of these groups – that does not make sense.”

Once the leader of a terrorist group is killed, he is quickly replaced, and the successors are at times more brutal than the men killed by the U.S. strikes. ¹¹ Regardless of the number of civilian deaths or even the accuracy of the strikes, however, the efficiency and value of the strikes are difficult to determine, since even when the assaults eliminate Al Qaeda and Taliban leaders, they may nevertheless have little impact on the terrorist and extremist organizations. The confidence of U.S. officials and Washington-based counterterrorism experts over the “progress” that they made with the assault on the Pakistani Taliban on that night may have been excessive. After Mehsud died, he became a martyr, and some military analysts say that the air strike made it easier for the Taliban to recruit supporters in the region. Mehsud was replaced by a new leader, and the Taliban suffered almost no setback during their transition in leadership.

In another case, U.S. Special Forces spent two-and-a-half years in an effort to track down Abu Musab al-Zarqawi, Al Qaeda’s leader in Iraq, and the Special Forces conducted hundreds of tactical missions in pursuit of their target, until they killed him in June 2006. ¹²

Eliminating Zarqawi was widely considered to be one of the greatest achievements of U.S. Special Operations, and yet his death had little or no impact on the terrorist organization itself and did little to reduce the violence in the country. ¹³ Moreover, as Boston University’s Andrew Bacevich has argued, the military campaign against Zarqawi and other members of Al Qaeda and extremist groups is similar to a Vietnam-era program that was designed to wipe out the Viet Cong and later became notorious for widespread human-rights abuses; as military historians point out, the program was largely unsuccessful and has much in common with the current campaign of targeted warfare. “It is in a sense a version of the Phoenix Program. We’re assassinating them with missiles.” ¹⁴

The durability and adaptability of Al Qaeda reinforces the findings about these attempts to eradicate the terrorist groups, since Al Qaeda members have managed to persevere in the tribal areas despite the strikes against them. The air strikes have managed to slow Al Qaeda down, but the attacks have not been debilitating, as its ongoing operations have demonstrated over the past two years. Al Qaeda fell behind on the number of media releases it produced in 2008, issuing only half the number it had distributed during the previous year, but by the following year its media division had returned to normal. Rather than destroying Al Qaeda’s safe haven in Pakistan and eliminating the terrorist group, the stealth warfare has caused Al Qaeda to adapt to a new and more treacherous environment, as counterterrorism experts have explained, and may have helped the organization transform itself into an even more powerful, global operation.

Some counterterrorism experts contend that Al Qaeda is no longer a terrorist organization with a media offshoot, as it was in the early 2000s; it has instead become a media organization with a terrorist component. Its members have adopted a more aggressive role in global brand management, offering coffee mugs with a terrorist logo to supporters, and they have also become increasingly sophisticated in their marketing. In one of the Al Qaeda promotional videos, for instance, filmmakers show footage of counterterrorism experts Michael Scheurer, a former CIA officer, and Peter Bergen, a CNN security analyst, both of whom describe the dangers of Al Qaeda and inadvertently help boost the terrorist brand. Through these efforts, and drawing on the anti-American sentiment that has developed because of the clandestine strikes in countries such as Pakistan, Al Qaeda and other terrorist groups are expanding their base.

A study conducted by one European government has demonstrated that there is a correlation between drone strikes in the tribal areas of Pakistan and the rate of radicalization among people who are living in that region as well as among Pakistanis who are residing in Europe; the report was based on two years of field research, but its findings are classified. Nevertheless, there is plenty of evidence of the connection between radicalization and drone strikes that is public. One individual, Faisal Shahzad, the Pakisani-American who tried to set off explosives at Times Square, said afterwards that he had joined forces with Al Qaeda partly because he was enraged at the drone strikes that killed women and children in Waziristan.

Read Part Two: Legal Dimensions of Targeted Warfare

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