Gregory McNeal on Targeted Killing and Collateral Damage in U.S. Drone Warfare Operations

Gregory McNeal is Associate Professor of Law at Pepperdine University School of Law. Professor McNeal emailed me yesterday with a heads up on his new essay at the Social Science Research Network, "The U.S. Practice of Collateral Damage Estimation and Mitigation." And he's got a abbreviated version of the argument at Lawfare. An excerpt:

Much of the commentary about air launched targeted killing–especially the commentary that focuses on a “video game” style of warfare with unaccountable geographically remote pilots dropping bombs at their own discretion–simply does not describe the reality of current combat operations (I directly address the false claims about targeted killing in a forthcoming book chapter). To highlight one example of the reality I describe versus commentary we typically read, just consider the fact that in Afghanistan since at least June 2009, all air-to-ground operations are pre-planned operations unless troops are in an emergency situation requiring close air support (CAS), close combat attack (CCA) or the pilot is acting in self-defense. In both CAS and CCA in Afghanistan, the pilot may not deploy a weapon without ground commander direction, usually through a Joint Terminal Attack Controller (JTAC) (a JTAC is a person who accompanies ground forces and is specifically trained to direct accurate close air support to engage enemy targets while reducing collateral damage and civilian casualties). The pilot’s only discretion in current operations is to decide not to release a weapon, in other words the ground commander owns the battlespace not the drone pilot. Furthermore, Air Force leaders repeatedly emphasize to their pilots that they will not be disciplined for returning to base with all of their bombs on their plane. Air Force leadership will even support the decision of pilots not employ a weapon, even if that decision directly contravenes the orders of the ground commander. This reality is a far cry from the free fire zone of “video game” warriors described by many drone critics.

Because targeted killing operations by UAV are not CAS or CCA, they are pre-planned operations, and as such must be subjected to the military’s rigorous collateral damage methodology. That methodology is grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence, and is designed to adapt to time-critical events. The CDM is a planning tool that assists commanders in mitigating unintended or incidental damage or injury to civilians, property and the environment and aids them in assessing proportionality and in weighing risks to collateral concerns. In the context of targeted killing, the CDM takes into account every conventional weapon a UAV could carry.

The first step in the military’s collateral damage estimation process requires military commanders and their subordinates to ensure that they can positively identify, with reasonable certainty, that the object or person they want to affect is a legitimate military target (in the case of persons, one who is directly participating in hostilities). In targeted killing operations, the process of positively identifying a target means that commanders and their subordinates are focusing principally on the identity of the target. This is an intelligence-heavy task that relies on the collective effort of the intelligence community (both military and civilian) to vet and ensure the validity of the target in accordance with IHL and the ROE. Before engaging in an operation, military personnel must inform a commander (or “strike approval authority”) of the assumptions and uncertainties associated with information provided for the operation, including the time sensitive nature of any intelligence relied upon. In practice, what this means is that if positive identification of a target fails, no operation will take place. This is so because in U.S. practice, positive identification satisfies the requirement of ensuring that a target has the status of a legitimate military objective. When doubt arises as to whether an object holds civilian status, there exists a presumption that it does, hence the requirement of positive identification in U.S. operations.

Continue reading.

Also, see the response from Benjamin Wittes, at Lawfare, "Gregory McNeal on U.S. Targeting Standards." And from Kenneth Anderson, at Volokh, "Gregory McNeal on US Military Targeting Processes."

RELATED: A blast from the past. See Colin H. Kahl, at International Security, "In the Crossfire or the Crosshairs? Norms, Civilian Casualties, and U.S. Conduct in Iraq."